Guest Post: New election law targets judicial campaign fundraising

A reader alerted me to this article, by Appellate Court Justice Mathias W. Delort, which first appeared in The Gavel, the newsletter of the Illinois Judges Association. It is reprinted here with the kind permission of the author and of the IJA's president, Hon. Barb Crowder (Ret). The accompanying graphic is no doubt obsolete (I'm obviously not a subscriber) but it's what I could find. -- Ed.

by Justice Mathias W. Delort

Every year, legislators in Springfield introduce countless bills to amend the state’s election laws. Most of those bills never see the light of day, because the legislature’s practice was to consider only a single omnibus election bill each term, and then only in the waning hours before both chambers adjourned. This year was no exception.

During the veto session held in late October 2021, the General Assembly adopted this year’s omnibus election bill, Senate Bill 536. On November 15, the Governor signed the bill into law as Public Act 102-668. The new law is almost 100 pages long. Among other things, it moves the 2022 General Primary Election from March to June, temporarily reduces petition signature requirements, and delays the associated petition filing deadlines to accommodate the late-enacted redistricting of congressional, legislative, and other districts. It also delays the long-awaited redrawing of judicial subcircuit boundaries in the 12th, 16th, 17th, 19th, 22nd, and Cook County Judicial Circuits from 2021 to 2022.

The most significant changes of interest to judges and judicial candidates in the new law, however, are its amendments to Article 9 of the Illinois Election Code (10 ILCS 5/9-1 et seq.) which relate to campaign financing. These changes became effective immediately when the Governor approved the bill on November 15.

The first of these changes regulates what commentators call “dark money.” The new law provides that political committees of candidates seeking nomination to the Illinois Supreme Court, Appellate Court, or Circuit Court may not accept contributions (except de minimis ones) from any group that is not required by law to disclose the identity of its contributors. In this context, “contribution” is specifically, and broadly, defined to include “expenditures made by any person in concert or cooperation with, or at the request or suggestion of, a candidate, his or her designated committee, or their agents,” and “the financing by any person of the dissemination, distribution, or republication, in whole or in part, of any broadcast or any written, graphic, or other form of campaign materials prepared by the candidate, his or her campaign committee, or their designated agents.” In practice, “dark money” usually comes from nonprofit organizations such as “social welfare” groups, unions, and trade associations that are not required to disclose their donors.

The second change is an apparent attempt to halt the use of “outside” interest money in Illinois judicial elections. The law contains a new blanket prohibition against the same judicial campaign committees from accepting contributions from any “out-of-state person.” Article 9 of the Election Code defines “person” broadly to include “a natural person, trust, partnership, committee, association, corporation, or any other organization or group of persons.” The new law does not define “out-of-state,” but it appears that it might, for instance, prohibit a candidate from even accepting a contribution from a parent, child, or family member who happens to live outside of Illinois.

Campaign finance regulation had its genesis in the enactment of federal restrictions enacted after the Watergate scandal of the early 1970’s. Most, if not all, states have followed suit by enacting campaign finance laws that promote disclosure of campaign donations and expenditures, and that impose limits on how much a campaign may accept from particular donors. In cases such as Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the United States Supreme Court determined that campaign finance restrictions must be analyzed in light of the First Amendment’s free speech protections, because spending campaign money facilitates political speech. This doctrine, sometimes characterized as “money equals speech,” has led to an avalanche of litigation challenging many campaign finance and disclosure restrictions on the basis of the First Amendment. A good deal of this litigation has been successful. Whether the new Illinois law will pass muster under these precedents remains to be seen. But for now, judicial candidates and those working with their campaign finance committees should be aware of these new restrictions.