PRESS RELEASE

MEDIA CONTACT: Diana Rickert Diana@IllinoisPolicy.org or (312) 607-4977

Liberty Justice Center files lawsuit to challenge constitutionality of Illinois campaign finance law
Current campaign finance law violates citizens rights to free speech and equal protection
CHICAGO (July 25, 2012) The Liberty Justice Center, a public interest litigation center started by the Illinois Policy Institute, has filed a federal lawsuit challenging the constitutionality of Illinois campaign finance law. The lawsuit shows that Illinois campaign finance law violates the First Amendment and equal protection clause of the U.S. Constitution. Under the guise of reform, Illinois campaign finance law was passed in 2009 and amended earlier this month. The law places limits on political contributions during a general, statewide election except when political parties or political leaders make these contributions. This wasnt campaign finance reform; this legislation restricted the free speech rights of citizens of Illinois including our client, Illinois Liberty PAC while the political parties and party leaders exempted themselves from the law and also created ways to circumvent this law, said Diane Cohen, general counsel of the Liberty Justice Center. We have filed a motion asking the court for a preliminary or permanent injunction to enjoin the enforcement of certain portions of this Act, so that so that all Illinoisans can freely exercise their rights to free speech. As the law currently is written, there are no restrictions on what political parties can give to candidates. Meanwhile, average citizens are restricted and can only donate what political leaders decide. The practical result of this law is that political parties, party bosses and party leaders can enjoy unlimited donations and give unlimited amounts to candidates of their choosing. Meanwhile, candidates who do not have the backing of party bosses face steep limits which makes it difficult, if not impossible, to take on incumbents and entrenched interests. Party bosses should have to live under the same laws they impose on the rest of us, said Dan Proft, chairman of Illinois Liberty PAC, the plaintiff in the case. This law is a scheme to further consolidate power in the hands of party bosses by limiting the participation and free speech rights of 13 million Illinoisans. Everyone who wants to participate in the political process in Illinois should be treated equally. The lawsuit was filed in federal district court in Chicago. A copy of the complaint is available online at: http://tinyurl.com/ljc-campaignfinance

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The Liberty Justice Center is a nonprofit, nonpartisan public interest litigation center that was started by the Illinois Policy Institute. The Liberty Justice Center fights to protect economic and personal liberty, private property rights, free speech and other fundamental rights in Illinois and nationwide. First and foremost, the Liberty Justice Center seeks to ensure that the rights to earn a living and to start a business, which are essential to a free and prosperous society, are available not just to a politically privileged few, but to all. The Liberty Justice Center pursues its goals through strategic, precedent-setting litigation to revitalize constitutional restraints on government power and protections for individual rights. To learn more about the Liberty Justice Center, visit: libertyjusticecenter.org.

Money flow by dollar amount to Republican candidate and party committees 2009-10
Citizens to Elect Tom Cross $3,714,501 Citizens for Christine Radogno $1,942,438

$210,000 $195,000 $825,000

$23,875 $1,130,000

$221,173

House Republican Organization $4,818,200

$968,670

Illinois Republican Party $5,061,258

$980,000

Republican State Senate Campaign Committee $3,717,915

$428,352

63.7% of total funds from the Minority Leader and party committees
$76,468

64.8% of total funds from the Minority Leader and party committees $184,984 35.2% Other Sam McCann for State Senate $984,091

36.3% Other Citizens for Unes $796,667

Money flow by dollar amount to Democratic candidate and party committees 2009-2010
Friends of Michael J. Madigan $4,867,022 Citizens for Cullerton $2,136,691

$2,350,000

Democratic Party of Illinois $10,326,940

$1,400,000

Senate Democratic Victory Fund $8,027,313

$1,356,916

$125,000

$971,306 $234,321 $546,557 $1,475,000

Democratic Majority $125,000.00

Direct contributions to other candidate committees

54.7% of total funds from party committees

49.2% of total funds from party committees

65% of total funds from party committees

45.3% Other

50.8% Other

35% Other

Direct contributions to other candidate committees

Kilbride for Supreme Court Judge $2,695,982

Citizens for Mike Smith $1,112,029

Senator Demuzio Committee $1,853,938

Case: 1:12-cv-05811 Document #: 7 Filed: 07/24/12 Page 1 of 15 PageID #:19

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ILLINOIS LIBERTY PAC, a Political Action Committee registered with the Illinois State Board of Elections, Plaintiff, v. LISA M. MADIGAN, Attorney General of the State of Illinois; WILLIAM McGUFFAGE, Chairman of the Illinois State Board of Elections; JESSE R. SMART, Vice-Chairman of the Illinois State Board of Elections; HAROLD D. BYERS, Member of the Illinois State Board of Elections; BETTY J. COFFRIN, Member of the Illinois State Board of Elections; ERNEST L. GOWEN, Member of the Illinois State Board of Elections, JUDITH C. RICE, Member of the Illinois State Board of Elections; BRYAN A. SCHNEIDER, Member of the Illinois State Board of Elections; and CHARLES W. SCHOLZ, Member of the Illinois State Board of Elections, all in their official capacities, Defendants. ) ) ) ) ) ) ) ) ) ) Judge Gary Feinerman ) Magistrate Judge Susan E. Cox ) ) No. 12 CV 05811 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR PRELIMINARY AND/OR EXPEDITED PERMANENT INJUNCTION I. Introduction

Plaintiff Illinois Liberty PAC (Illinois Liberty PAC) is a not-for-profit pro-liberty political action committee (PAC) that supports candidates for public office who embrace public policy rooted in the principles of liberty and free enterprise. (Decl. of Matthew Besler, 5, attached as Exh. 1.) Illinois Liberty PAC brings this Motion for Preliminary Injunction and/or 1

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Permanent Injunction to enjoin the enforcement of certain portions of the Disclosure and Regulation of Campaign Contribution and Expenditures Act (the Act), 10 ILCS 5/9-8.5(a)-(d), because they violate Illinois Liberty PACs and other nonparty political speakers rights to free speech and equal protection under law pursuant to the First and Fourteenth Amendments of the United States Constitution. The Act establishes a series of contribution limits on nonparty political speakers, including Illinois Liberty PAC, while exempting political parties from these same limits. This disparate treatment, along with the Acts overall scheme that includes exemptions and instances where limits are entirely eliminated, evince that its contribution limit scheme does not serve the only interest the Supreme Court has recognized for justifying such limits, preventing quid pro quo1 corruption or the appearance of corruption. See Wis. Right to Life PAC v. Barland, 664 F.3d 139, 153 (7th Cir. 2011) (WRTL). For these reasons, the Acts contribution limits on all political speakers and committees should be enjoined and struck down as unconstitutional. In the alternative, the contribution limits on Illinois Liberty PAC should be enjoined and struck down. II. Statement of Facts

In January 2009, Illinois enacted its first-ever campaign contribution limits for statewide general and primary elections, which took effect January 1, 2011. 10 ILCS 5/9-8.5. Specifically, the Act limits contributions that individuals, political action committees (PACs)2 and other nonparty political speakers may make to candidates during a general election $5,000, $50,000, and $10,000 respectively while expressly exempting political party contributions to

The hallmark of corruption is the financial quid pro quo: dollars for political favors. Federal Election Commn v. National Conservative Political Action Comm., 470 U.S. 480, 497 (1985). 2 PACs are defined as a group of persons that accepts contributions, makes expenditures or electioneering communications during any 12-month period in an aggregate amount exceeding $3,000 on behalf of or opposition to a candidate(s) for public office. 10 ILCS 5/9-1.8(d). 2

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candidates and other political parties. Id. Both the bill and its subsequent July 2012 amendments thereto were passed on party-line votes, with Democrats, including the House Speaker and Senate Leader, supporting the bill, and most Republicans, including the House and Senate Minority Leaders, opposing it. (See Exh. 2.) The only limits the Act places on political party contributions to candidates apply solely during primary elections. However, in statewide elections these limits are forty times the amount that individuals may contribute $200,000 versus $5,000 and four times the amount PACs can make $200,000 versus $50,000.3 Currently there are limits on what a party can receive in a primary election $50,000 from a candidate and $50,000 from another party but the Act eliminates these limits entirely effective July 1, 2013. 10 ILCS 5/9-8.5(c).4 While there are limits on what individuals, PACs and other nonparties can contribute to political parties, parties may receive unlimited contributions from candidates and other political parties. 5/9-8.5 (b), (c). The Act also contains a provision that eliminates all contribution limits in a race if a selffinanced candidate spends more than $250,000 for a statewide race or more than $100,000 for any other elective office. 10 ILCS 5/9-8.5(h). In July 2012, an amendment to the 2009 Act was passed that eliminates all contribution limits in a race if an independent expenditure committee spends more than $250,000 (for a statewide race) or more than $100,000 (for any other elective office). 5/9-8.5(h-5). The Act does not, however, eliminate contribution limits based on what a political party spends in any race, including when a political party spends more than $250,000

Other disparate party-versus-nonparty contribution limits apply to primary races including Senate, House, First District judicial candidates, and other municipal and county office holders. See generally 10 ILCS 5/9-8.5(b). 4 See also 10 ILCS 5/9-8.5(c), a legislative caucus political committee may not accept contributions from another political party established by a legislative caucus. 3

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in a statewide race or more than $100,000 in any other race. In fact, political party contribution spending in Illinois races has far surpassed these limits. (See Exhs. 3-5, party to candidate contributions and Exh. 7, foundational Decl. of Robert T. Isham.) Political Parties as Defined under the Act Political parties are referred to as political party committees under the Act and include the state and county central committees of a political party, a legislative caucus committee, and a committee formed by a ward or township committeeman of a political party. 10 ILCS 5/9-1.8(c). A legislative caucus committee is a committee established for the purpose of electing candidates to the General Assembly by the President of the Senate, Minority Leader of the Senate, Speaker of the House of Representatives, Minority Leader of the House, or a committee established by 5 or more members of the same caucus of the Senate or by 10 or more members of the same caucus of the House. Id. All of these party committees are empowered to give unlimited contributions to candidates (with the limited exception of during primary elections as noted above). Id. The Act expressly prohibits individuals and other groups of persons (e.g., committees, associations, corporations), from forming more than one political action committee. 10 ILCS 5/9-2(d). The Act does not prohibit a public official or candidate for public office from serving as the officer of both a candidate committee and another committee, such as a party or legislative committee, nor does it prohibit an individual from serving as an officer of multiple party committees. Accordingly, while the Act prohibits officers of Illinois Liberty PAC from forming another PAC, the Act does not, for example, prohibit Speaker Madigan from serving as the Treasurer of his own candidate committee, Friends of Michael J. Madigan, while also serving as the chairman of two party committees, the Democratic Party of Illinois and the Democratic

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majority which, in fact, he does. (See Exhs. 3,7.) Further, the Acts statutory scheme expressly ensures that the Speaker can make unlimited contributions from his candidate committee to the party committees he chairs, 10/9-8.5(c), and then make unlimited contributions from his political parties to candidates which in fact he does.5 Id. (See Exhs. 3, 7.) For example, Friends of Michael J. Madigan gave the Democratic Party of Illinois $2,350,000 in the 2009-2010 election cycle. The Democratic Party then made contributions to candidate committees ranging from $234,321 to the Senator Demuzio candidate committee, to $1,475,000 to Kilbride for Supreme Court Judge (which represented 54% of the Judges total contributions received during this cycle). (See Exhs. 3,7.) Contributions from the Democratic Party of Illinois and the Senate Democratic Victory Fund constituted 65% of the total contributions made to Senator Demuzios candidate committee. (See Exhs. 3,7.) Further, of the $796,667 in total contributions that Citizens for Unes received in the 2009-2010 election cycle, 63.7% of these contributions came from a combination of Minority Leader Cross candidate committee, the House Republican Organization, and the Illinois Republican Party. (See Exhs. 5, 7.) In the case of the candidate committee Sam McCann for State Senate, that committee received $23,875 from the Citizens for Christine Radogno candidate committee. However, Senator Radognos candidate committee also contributed more than $1,130,000 to the Republican State Senate Campaign Committee, of which Senator Radogno is chairwoman, and the Republican State Senate Campaign Committee gave $428,352 to Sam McCanns state senate candidate committee. (See Exhs. 6-7.)

The Senate President has a like arrangement, where he is both the chairman of his candidate committee and the chairman of the Senate Democratic Victory Fund party committee. (See Exhs. 5.) 5

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This history shows that the state knew both before the 2009 Act was passed and the 2012 amendments that political parties and the elected leaders who were contributing well beyond any of the caps the Act imposes on other speakers, including Illinois Liberty PAC. This history also shows that the candidate committees of party leaders are able to circumvent the Acts limits on candidate contributions to other candidate committees, 10 ILCS 9-8.5(b), by using the party committees they control as a conduit for contributions to other candidate committees. But for the Act, Illinois Liberty PAC would make contributions that exceed the Acts contribution limits. (Exh. 1, 11-16, Besler Decl.) Further, but for the contribution limits, Illinois Liberty PAC would have the freedom to direct its in-kind and monetary contributions in a manner that best advances its principles and strategic purposes. (Id. at 14.) Moreover, it would not be forced, as it now is, to make smaller contributions to candidates than it wishes or decline to contribute at all if Illinois Liberty PAC determines that a smaller contribution (at or below the Acts limits) would not make an impact in a race. (Id. at 15.) Illinois Liberty PAC is ready, willing and able to make contributions in excess of the Acts limits. (Id. at 12.) In addition, but for the Act, Illinois Liberty PAC would be ready and willing to accept donations in excess of what the Act allows. (Id. at 13.) At present, Illinois Liberty PAC has at least one donor who has given Illinois Liberty PAC the maximum aggregate contribution of $10,000 for the current election cycle, who would donate more but for the Act. (Exh. 10, 1-7, Bachrach Decl.) III. Summary of the Argument

The Act was enacted in 2009 under the guise of campaign finance reform, but in reality operates to increase political party power in the state. Far from targeting Illinois long history of political corruption, and those who wish for political favors in exchange for their financial

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support of candidates or officials (Defs. Opp. to Plfs. Mot. Prelim. Inj., at 6, Personal PAC v. McGuffage, 12 CV 1043 (Feb. 24, 2012))6 (Exh. 8), the Acts party exemptions exacerbate the threat of corruption and apparent corruption that the contribution limits on individuals and PACs are purportedly aimed at reducing. See Federal Election Commn v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 440-45 (2001) (Colorado II). In fact, the evidence shows that the same political leaders who voted for the Act and its 2012 amendments, including Speaker Madigan and Senate Leader Cullerton, are the very political leaders who benefit from the Acts exemptions. (See roll call votes on the 2009 Act and 2012 amendments, Exh. 2.) In legislating themselves above the law, the political leaders literally sanctioned their own control over the flow of campaign spending throughout the state in 2009, then further solidified it in 20012. As Representative Suzanne Bassi remarked in the 2009 floor debate on the Act: Without those caps, the new reform is not only business as usual but make matters worse. The four Legislative Leaders controlled at least $25 million in each of the last three election cycles. Other limits on contributions to candidates are meaningless when Party Leaders can continue to give unlimited amounts of cash to their chosen candidate. Ill. H.R., 96th Gen Assemb.-81st Legis. Day, at 130-31 (Oct. 29, 2009) (Exh. 9). Accordingly, the Illinois campaign finance scheme, with its series of loopholes, party exemptions and selective contribution-limit-lifting triggers, disparately treats Plaintiff Illinois Liberty PAC and other nonparty political speakers, fails to serve an anti-corruption purpose, and therefore should be enjoined and stricken as unconstitutional. IV. Standard of Review

In order to prevail on a motion for preliminary injunction, Plaintiff must demonstrate: 1) some likelihood of success on the merits; 2) no adequate remedy at law exists; and 3) irreparable harm if the injunction is not granted. Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.
6

See Personal PAC v. McGuffage, 2012 WL 850744 (N.D. Ill. Mar. 13, 2012). 7

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2001). If these conditions are met, the Court must then balance the hardships the moving party will suffer in the absence of relief against those the nonmoving party will suffer if the injunction is granted. Id. Finally, the Court considers the interests of nonparties in deciding whether to grant injunctive relief. Id. The Court weighs all these factors sitting as would a chancellor in equity, using a sliding scale approach: the more likely it is the plaintiff will succeed on the merits, the less the balance of irreparable harms need weigh towards its side; the less likely it is the plaintiff will succeed, the more the balance need weigh towards its side. Abbott Labs v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). V. A. Argument

The Act violates Illinois Liberty PACs right to Equal Protection The Fourteenth Amendment denies states the power to legislate that different treatment

be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. Reed v. Reed, 404 U.S. 71, 75-76 (1971). A classification that implicates a fundamental right, including the right to free speech, must be narrowly tailored to serve a compelling state interest. See Plyler v. Doe, 457 U.S. 202, 217-18 (1982) (classifications that impinge upon exercise of a fundamental right subject to strict scrutiny); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 547 (1983) (freedom of speech a fundamental right for equal protection analysis). Thus, in order to sustain the Acts disparate treatment of Plaintiff and political parties, the state must show that doing so serves a compelling state interest. The Supreme Court has recognized only one state interest sufficiently compelling to justify restrictions on campaign contributions: preventing quid pro quo corruption or the appearance of quid pro quo corruption.

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See WRTL, 664 F.3d at 153. Thus, the state must show that any scheme that restricts campaign contributions serves this purpose. Here, the state cannot show that the Act is narrowly tailored to combat corruption because it declines to place limits on and thereby enhances the potentially corrupting activities of political parties while restricting all other nonparty political speakers. As the Supreme Court recognized in Colorado II, political party contributions to candidates have the same potential to corrupt as nonparty contributions. 533 U.S. at 452. In that case, the National Republican Party argued that it should not be subject to federal limits on coordinated party expenditures as PACs and other nonparty political speakers are. The Party argued that because a partys most important speech is aimed at electing candidates and is itself expressed through those candidates, any limit on party support for a candidate imposes a unique First Amendment burden. Id. at 445. But the Court rejected the Partys argument because it found that parties, like PACs, can act as agents for spending on behalf of those who seek to produce obligated office holders. Id. at 452. The Court concluded that [t]his party role . . . provides good reason to view limits on coordinated spending by parties through the same lens applied to spending by donors, like PACs, which can use parties as conduits for contributions meant to place candidates under obligation. Id.; see also Russell v. Burris, 146 F.3d 563, 572 (8th Cir. 1998) (Disparate limits, assessed based on whether a PAC accepted small versus large individual donations, violated equal protection because they ignored the possibility that the small-donor PAC . . . will seek to control a given candidate. [I]f any contribution is likely to give rise to a reasonable perception of . . . corruption . . . it would be from an entity permitted to contribute two-and-a-half times the amount that others are allowed to contribute.).

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As the Supreme Court explained in Colorado II, there is nothing inherent in political parties that warrants treating their speech more favorably than that of PACs or other nonparties. Moreover, nothing about the political party power structure in Illinois in particular provides any basis for treating parties more favorably than other political speakers by exempting them from nearly all of the Acts contribution limits. See Colorado II, 533 U.S. at 454-55. In addition, even if parties were deemed differently situated from PACs and other nonparties that is, if the parties speech were not considered to be potentially corrupting the Illinois scheme would still violate equal protection. Under the Acts 2012 amendments, all contribution caps in a race are lifted when independent expenditures in the race exceed certain amounts. The caps are not lifted, however, when party expenditures exceed these (or any) amounts. If independent expenditures are not corrupting (which, as a matter of law, they are not, see Citizens United v. Federal Election Commn, 130 S.Ct. 876, 909 (2010)), and if one assumes that party expenditures also are not corrupting, then the state has no justification for lifting caps in response to independent expenditures but not in response to party expenditures. Thus, even if one assumes that party expenditures are not corrupting, and thus no limits are necessary, the Act is not narrowly tailored to prevent corruption. In fact, the legislative history of the 2012 Amendments shows that the General Assembly enacted the independent expenditure amendment in the wake of the Supreme Courts decision in Citizens United and the Seventh Circuits decision in Personal PAC (supra), which prohibit the state from imposing contribution limits on independent expenditures such as from Super PACs. Il. H.R., 97th Gen. Assemb.-SB 3722, 2nd & 3rd, at 7:10-24. (May 30, 2012) (Exh. 9). Representative Currie explained: it would be an outrage not to help the other candidates not

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benefited by the super PAC [by] not . . . giving them the opportunity to level the playing field. Id. But if the state is eliminating contribution limits in response to independent expenditures in order to "level the playing field," then the state should eliminate contribution limits in response to party expenditures too. As Leader Currie observed: [w]e already provide an end to caps when somebody is running against you is spending $100,000 of his or her own money to defeat you. We give you the opportunity to avoid the contribution cap. This new provision [regarding independent expenditures] is totally analogous to the circumstance where a selffunder is spending huge sums of money. (Id. at 7:18-23) What the state does not give7 candidates is this same freedom from contribution limits when faced with the flood of party money into a race. And this not only favors political parties in violation of equal protection, it fails to serve any anticorruption interest, and therefore the contribution limit scheme violates Illinois Liberty PACs and other nonparties First Amendment rights to free speech as well. B. The Act violates Illinois Liberty PACs First Amendment right to free speech Ever since Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court has drawn a distinction between restrictions on expenditures for political speech and restrictions on contributions to candidates. Although [s]pending for political ends and contributing to political candidates both fall within the First Amendments protection of speech and political association, Colorado II, 533 U.S. at 440, the Court has generally applied a more lenient standard of review in cases involving First Amendment challenges to limits on contributions. The scrutiny that is appropriate for a contribution limit considers whether the restriction is

The state does not bestow or gift individual liberty to its citizens. A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate. Thomas Jefferson, A Summary View of the Rights of British America, July 1774 Papers 1:121 35. 11

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closely drawn to match what [the Supreme Court has] recognized as the sufficiently important government interest in combating political corruption. Id. at 456. While Plaintiff submits that Buckley v. Valeo, 424 U.S. 1, should be overruled because [p]olitical speech is the primary object of First Amendment protection, Nixon v. Shrink Missouri Govt PAC, 528 U.S. 377, 410-11 (2000) (Thomas, J., dissenting), and deserves the highest of constitutional protections, this Court need not ignore Buckley in order to find the entire Illinois scheme unconstitutional. The Acts loopholes and exemptions undercut any purported anticorruption interest [A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited that is, when it is underinclusive. Florida Star v. B.J.F., 491 U.S. 524, 541-42 (1989) (Scalia, J. concurring) (internal marks and citation omitted). Here, the Acts preferential treatment of parties through exemptions and loopholes its 2012 amendments that eliminate direct contribution limits depending on the amount of independent expenditures in a race, and its elimination of limits relating to self-funded candidates all evince that the Act is so woefully underinclusive as to render the belief [that the Act or its limits serve an anticorruption interest] a challenge to the credulous. See Republican Party of Minnesota v. White, 536 U.S. 765, 780 (2002). The Supreme Court has repeatedly recognized that a regulatory scheme is not narrowly tailored if it is underinclusive. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 489 (1995) (exemptions and inconsistencies in labeling ban [brought its purpose] into question and ensure[d] that [it would] fail to achieve that end); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993) (ordinance banning certain sidewalk newsracks unconstitutional because, among other reasons, the city had asserted an

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interest in esthetics, but respondent publishers newsracks [were] no greater an eyesore than the newsracks permitted to remain). Here, there is similar fatal underinclusiveness: The Acts elimination of direct contribution limits in response to independent expenditures in a race can serve no anticorruption interest precisely because the Supreme Court held as a matter of law that independent expenditures do not corrupt or create the appearance of corruption. WRTL, 664 F.3d at 154 (citations omitted). Because the 2012 amendment treats contribution limits as expendable, it stands as a tacit admission either that contribution limits are obsolete in the wake of Citizens United and thus serve no anticorruption interest or that the limits never served an anticorruption interest in the first place. See 10 ILCS 5/9-8.5(c-5), (h-5). If the state were truly seeking to prevent corruption or the appearance thereof with contribution limits, it would not have exempted political parties from these limits, nor would it have eliminated these limits in response to Citizens United. See Citizens United, 130 S.Ct. at 911. (federal statute underinclusive because if Congress had been seeking to protect dissenting shareholders, it would have banned corporate speech in only certain media within 30 or 60 days before an election). Simply put, Illinois cannot at once directly advance its presumed stated interest in preventing corruption or the appearance thereof through limits, while on the other hand creating an irrational regulatory scheme that favors political parties at the expense of all other political speakers while also eliminating limits altogether in selected races in response to speech that is noncorrupting speech. See Rubin, 514 U.S. at 488 (The failure to prohibit the disclosure of alcohol content in advertising [but not labels on alcohol containers], makes no rational sense if the Government's true aim is to suppress strength wars.) Such a scheme belies any government interest in preventing corruption or the appearance thereof.

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VI.

Illinois Liberty PAC Will Suffer Irreparable Harm If an Injunction Is Not Issued

As set forth above, Illinois Liberty PAC has shown a likelihood of success on the merits. Without a preliminary injunction, Plaintiff will suffer irreparable harm because any postelection remedy would not compensate . . . for the loss of the freedom of speech. Personal PAC v. McGuffage, 2012 WL 850744 *4 (N.D. Ill. Mar. 13, 2012) (quoting Brownsburg Area Patrons Affecting Change v. Baldwin, 137 F.3d 503, 507 (7th Cir. 1998)). Indeed, [t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Joelner v. Village of Washington Park, Illinois, 378 F.3d 613, 620 (7th Cir. 2004) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)). Illinois Liberty PAC is seeking to make donations to candidates in amounts greater than the Acts limits allow. (Exh. 1, 11-16, Besler Decl.) Campaign season for the November 2012 general election is underway and it is critical that the Acts unconstitutional provisions be enjoined so that Illinois Liberty PAC can be free to exercise its right to support through contributions the candidates of its choice in a manner that most effectively advances its mission. See Citizens United, 130 S.Ct. at 895 (noting the importance of speech in the weeks immediately before an election and that a speakers ability to engage in political speech that could have a chance of persuading voters is stifled if the speaker must first commence a protracted lawsuit). An Injunction Will Not Harm Defendants and Will Further the Public Interest. While Illinois Liberty PAC will suffer irreparable harm from the loss of its First Amendment freedoms in the absence of an injunction, the government cannot suffer harm from being prevented from enforcing an unconstitutional statute. Joelner, 378 F.3d at 619.

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Moreover, it is always in the public interest to protect First Amendment liberties. Id. (internal marks and citations omitted). The Court Should Waive The Bond Requirement Under F.R.C.P. 65(c). It is within the Courts discretion to waive Rule 65(c)s security requirement where it finds such a waiver to be appropriate in the circumstances. See Scherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir. 1972); Wayne Chemical, Inc. v. Columbus Agency Service Corp. 567 F.2d 692, 701 (7th Cir. 1977). In non-commercial cases, courts often waive the bond requirement where the likelihood of harm to the non-moving party is slight and the bond requirements would impose a significant burden on the moving party. See, e.g., Temple Univ. v. White, 941 F.2d 201, 219 (3d Cir. 1991). Waiver of the bond requirement is particularly appropriate in cases involving constitutional rights. See Smith v. Bd. Of Election Commrs, 591 F. Supp. 70, 71 (N.D. Ill. 1984). VII. CONCLUSION

Illinois Liberty PAC is currently and will continue to be irreparably harmed if the Act is not enjoined. As set forth above, Illinois Liberty PAC respectfully requests that this Court grant its motion for preliminary and/or permanent injunction. DATED: JULY 23, 2012 Respectfully submitted,

By:

s/Diane Cohen Diane S. Cohen (6199493) Peter G. White (6294072) Jacob Huebert (6305339) Attorneys for Plaintiff Illinois Liberty PAC

LIBERTY JUSTICE CENTER 190 S. LaSalle St., Ste. 1630 Chicago, Illinois (312) 263-7668 15