Richard C. Cooke kicks off 2016 campaign -- and the potential unintended consequences of a campaign loan

Appearing before the Cook County Democratic Party's judicial slatemakers in August 2013, Richard C. Cooke did not flinch when asked whether he would run against the Party if left off the ticket. If you don't slate me today, Cooke said, "consider this my 2016 kick-off then."

Cooke wasn't slated in 2013, but he has kicked-off his 2016 judicial candidacy in a big way -- one that may have an impact on many Cook County judicial campaigns this primary season -- or maybe not -- but we will come to that in time.

First, we introduce Cooke. Licensed as an attorney in Illinois since 1992, Cooke began his legal career doing subrogation work for Northbrook attorney Michael R. Kuzel and, later, in-house for CNA Insurance Companies. Since 1997, Cooke has operated his own firm, carving out a niche for himself in the petroleum industry, with a focus on Illinois EPA regulatory statutes and underground storage tank issues. His résumé notes that he's drafted sample facility EPA compliance and operation manuals that are in use at gas stations throughout Illinois. Along the way, Cooke says he's had over 200 bench trials and over 25 jury verdicts -- and, since 2008, he's operated a self-funded free legal aid clinic for needy families and individuals in the Logan Square and Humboldt Park neighborhoods.

Cooke's current campaign committee was set up on April 16, 2015, according to the Illinois State Board of Elections website. It's what he did on April 21, however, that is newsworthy. On that date, Cooke loaned his committee $500,000.

No, that's not a misprint.

I confirmed the loan in a conversation with Cooke earlier this week. Cooke is serious about winning election to the bench, he told me, but reluctant to hit up friends, family and clients for campaign donations. He had the wherewithal, Cooke said, to self-fund a strong, credible campaign -- and so he loaned his campaign the half a million.

Nice story, right? The independence and impartiality of the judiciary is of vital import to continued public confidence in our courts. Many serious observers are worried about the potentially corrupting influence of money in electoral politics and particularly in judicial elections. Raising campaign funds makes a lot of potential judicial candidates uneasy. So it's tempting to stop the story right here -- with a candidate who has (spectacularly) demonstrated an ability to avoid the whole troublesome question of fundraising.

But this is Illinois. And Cooke's actions -- well-intentioned as they may be -- may have unintended consequences.

Readers may recall the name William J. Kelly from the Chicago mayoral election just past. No, his name never appeared on the ballot, even in the primary (he never filed nominating petitions). But Kelly announced that he was running for Mayor of Chicago, formed a committee, and, last October, loaned his campaign $100,000.

Kelly told the Tribune last October that he intended by his action "to level the playing field" in the mayoral race, and perhaps that was his intention -- but it had the effect of blowing the caps off all campaign contributions for all mayoral candidates under Illinois law.

Here's why. Section 9-8.5(h) of the Illinois Election Code, 10 ILCS 5/9-8.5(h), provides, in pertinent part, "If a public official, a candidate, or the public official's or candidate's immediate family contributes or loans to the public official's or candidate's political committee or to other political committees that transfer funds to the public official's or candidate's political committee or makes independent expenditures for the benefit of the public official's or candidate's campaign during the 12 months prior to an election in an aggregate amount of more than (i) $ 250,000 for statewide office or (ii) $ 100,000 for all other elective offices, then * * * all candidates for that office, including the nominee who filed the notification of self-funding, shall be permitted to accept contributions in excess of any contribution limit imposed by subsection (b) for the subsequent election cycle." There are notices that have to be filed, and posted on the ISBE website, and given to other candidates -- but the bottom line is that, once one candidate for a particular office self-funds beyond the statutory limit, all candidates for that office are exempt from contribution limits.

That's easy enough to follow when one is running for mayor or governor -- there's only one of each -- but there are a number of Cook County judicial vacancies. We don't even know all of the judicial vacancies that will be up for election in the 2016 Primary.

So... did a gesture meant to express independence from the arguably corrosive, corrupting influence of campaign donations inadvertently blow the lid off all campaign contribution limits in all Cook County judicial races?

Section 9.8-5(h) is not entirely clear, acknowledged Ken Menzel, General Counsel of the Illinois State Board of Elections. In a telephone conversation with FWIW yesterday, Menzel explained that there would have been less of a problem if the loan had come much later in the election cycle. Right now judicial candidates are, theoretically, potential candidates for many possible vacancies. However, Menzel pointed our that regulations were recently adopted (on May 19, in fact) that may provide guidance. Menzel cited FWIW to Title 26 of the Illinois Administrative Code, Section 100.75. Section 100.75(j)(2) states that, "'Candidate for the same office' shall be determined by candidate petition filings. Prior to the actual filing of petitions for a particular office, a candidate for that office wishing to receive official notice of a Self-Funding Notification from the Board must inform the Board in writing of his or her intention to seek nomination or election to the office in question."

At this point -- since Cooke has not declared for any specific vacancy and petitions can not yet be legally circulated -- it is probably safe to say that campaign finance caps (currently $5,400 from individuals, $10,800 from corporations, labor organizations or associations) remain in place for all judicial campaign committees except Cooke's -- and he's not looking for more money. "That's almost certainly the legislative intent," one prominent election law attorney told me, though he would not comment for the record because of the possibility that this issue might be settled in the courts.

Hopefully, it won't get that far. Judicial candidates are more "risk-averse" than candidates for most offices, Ken Menzel observed, and therefore might not press the issue by seeking or accepting over-large donations. And, even if the ISBE might not cite a judicial campaign committee for accepting campaign contributions in excess of the caps because of the Cooke campaign loan, Menzel noted that, under §9-20 of the Election Code, 10 ILCS 5/9-20, any person who believes that the campaign finance laws have been violated may file a verified complaint with the ISBE, triggering a an administrative process that could wind up in court.

For his part, Cooke has not set his sights on a particular vacancy. In 2013 Cooke said he wouldn't run against the Democratic Party in 2014 if he was not slated, and he didn't. This week Cooke told me that nothing has changed; he still does not plan to run against the Party if he is not slated. On the other hand, the Democratic Party has a half million reasons to listen carefully to Cooke's pitch at the next slating meeting.