Illinois Liberty PAC v. Lisa Madigan ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3585
ILLINOIS LIBERTY PAC,
Political Action Committee
registered with the
Illinois State Board of Elections,
EDGAR BACHRACH, and KYLE MCCARTER,
Plaintiffs-Appellants,
v.
LISA MADIGAN, Attorney General
of the State of Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12-cv-5811 — Gary Feinerman, Judge.
____________________
ARGUED SEPTEMBER 27, 2017 — DECIDED SEPTEMBER 13, 2018
____________________
Before RIPPLE, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Illinois Liberty PAC, Edgar Bachrach,
and Kyle McCarter (collectively, “Liberty PAC”) sued Illinois
officials under 42 U.S.C. § 1983 alleging that certain cam-
2 No. 16-3585
paign contribution limits set by the Illinois Disclosure and
Regulation of Campaign Contributions and Expenditures
Act (“the Act”), 10 ILL. COMP. STAT. 5/9-1 et seq. (2016), violate
the First Amendment. Invoking the intermediate-scrutiny
framework of Buckley v. Valeo, 424 U.S. 1 (1976), Liberty PAC
challenges four parts of the Act that it contends are not
closely drawn to prevent quid pro quo corruption or its
appearance. First, the Act sets lower contribution limits for
individuals than for corporations, unions, and other associa-
tions. 10 ILL. COMP. STAT. 5/9-8.5(b)–(d). Second, the Act
allows political parties to make unlimited contributions to
candidates during a general election. Id. Third, a waiver
provision lifts the contribution limits for all candidates in a
race if one candidate’s self-funding or support from inde-
pendent expenditure groups exceeds $250,000 in a statewide
race or $100,000 in any other election. Id. 5/9-8.5(h). And
fourth, certain legislators may form “legislative caucus
committees,” which, like political party committees, are
permitted to make unlimited contributions to candidates
during a general election. Id. 5/9-1.8(c).
The district judge dismissed the first three claims at the
pleadings stage, reasoning that Supreme Court precedent
foreclosed them. The judge then held a bench trial to deter-
mine if the Act’s more lenient regulation of legislative caucus
committees—classifying them with political party commit-
tees—shows that the Act is not closely drawn to prevent
quid pro quo corruption or its appearance. The judge ruled
for the defendants, finding that legislative caucus commit-
tees are sufficiently similar to political party committees to
justify their identical treatment under the Act.
No. 16-3585 3
We affirm across the board. The Supreme Court’s
campaign-finance cases plainly foreclose any argument that
the Act’s contribution limits for individual donors are too
low or that the limits for other donors are too high. To
overcome this impediment, Liberty PAC argues that the Act
is fatally underinclusive by favoring certain classes of donors
over others. But the Court has repeatedly upheld a similar
federal campaign-finance scheme setting lower contribution
limits for individuals than for other categories of donors,
including political parties. See, e.g., McConnell v. FEC,
540 U.S. 93, 187–88 (2003), overruled on other grounds by
Citizens United v. FEC, 558 U.S. 310, 319 (2010); FEC v. Colo.
Republican Federal Campaign Comm., 533 U.S. 431, 455–56
(2001); Buckley, 424 U.S. at 35–36. The Court has also said
that a waiver provision like the one Illinois has adopted
would not be unconstitutional. See Davis v. FEC, 554 U.S. 724,
737 (2008). Finally, on the record before us, we see no basis to
disturb the judge’s factual findings that legislative caucus
committees are sufficiently akin to political party committees
to justify Illinois’s decision to treat them alike.
I. Background
Illinois Liberty PAC is a political action committee that
makes contributions to Illinois legislative candidates who
support free-market principles. Bachrach, an individual
donor, contributes to Illinois legislative candidates and
political action committees. McCarter is an Illinois state
senator. But for Illinois’s regulatory regime governing
contribution limits for elections to state offices, Liberty PAC
and Bachrach would contribute more to candidates,
Bachrach would contribute more to political action commit-
tees, and McCarter would solicit and accept larger contribu-
4 No. 16-3585
tions from donors. Together they filed this § 1983 lawsuit
against Illinois Attorney General Lisa Madigan and mem-
bers of the Illinois State Board of Elections to challenge
certain of the Act’s contribution limits.
The Act groups political donors into three broad catego-
ries: (1) individuals; (2) political committees; and (3) corpo-
rations, labor unions, and other associations. 10 ILL. COMP.
STAT. 5/9-8.5(b). There are several types of political commit-
tees: political party committees, candidate political commit-
tees, political action committees, and legislative caucus
committees. Id. 5/9-1.8(a). A political party committee is the
state, county, or ward committee of a political party. Id. 5/9-
1.8(c). Each candidate for public office may have one candi-
date political committee, which is composed of the candidate
himself or the group that accepts contributions on his behalf.
Id. 5/9-2(b). A political action committee or “PAC” is a group
of people or an organizational association that accepts
contributions, makes expenditures, and makes electioneer-
ing communications related to a political race exceeding
$3,000 in a 12-month period. Id. 5/9-1.8(d). Finally, a legisla-
tive caucus committee is “established for the purpose of
electing candidates to the General Assembly.” Id. 5/9-1.8(c).
A legislative caucus committee may be formed by the major-
ity and minority leaders of the Senate and House, or by a
group of five state senators or ten state representatives in the
same partisan caucus. Id.
The Act sets different base contribution limits depending
on the identity of the donor and recipient. An individual
may contribute $5,000 to a single candidate in a given elec-
tion cycle; $10,000 to a political action committee; and
No. 16-3585 5
$10,000 to a political party committee. 1 § 5/9-8.5(b)–(d). A
corporation, labor union, or other association may contribute
twice as much as an individual: $10,000 to candidates;
$20,000 to political action committees; and $20,000 to politi-
cal party committees. Id. A political action committee may
contribute $50,000 to candidates, other political action
committees, and party committees. Id. A political party
committee may contribute up to $200,000 for a statewide
candidate during a primary election and an unlimited
amount during a general election. Id.
The Act has two additional features at issue in this case.
First, if a candidate’s self-funding or independent spending
in support of the candidate exceeds $250,000 in a statewide
race or $100,000 in any other election, then the contribution
limits are waived for all candidates in that race. § 5/9-8.5(h).
Second, as we’ve noted, the Act authorizes certain legislative
leaders and groups of legislators to create legislative caucus
committees. These are powerful political tools: legislative
caucus committees are subject to the same generous contri-
bution limits as political parties, but a candidate may not
accept contributions from more than one legislative caucus
committee in a given election cycle. § 5/9-8.5(b).
Liberty PAC’s original complaint alleged that the Act
violates the First Amendment because it is not closely drawn
to prevent quid pro quo corruption or its appearance. 2 The
1 The contribution limits have been adjusted upward for inflation since
the Act was enacted. See 10 ILL. COMP. STAT. 5/9-8.5(g). We use the
original figures throughout the opinion for simplicity’s sake.
2McCarter was added as a plaintiff when Liberty PAC filed its amended
complaint.
6 No. 16-3585
complaint challenged three aspects of the regulatory regime:
(1) the provision setting higher contribution limits for corpo-
rations, unions, and other associations than for individuals;
(2) the provision allowing political parties to make unlimited
contributions to candidates in general elections; and (3) the
waiver provision eliminating all contribution limits if one
candidate’s self-funding or independent spending in sup-
port of the candidate exceeds the thresholds mentioned
above. The complaint also alleged that the Equal Protection
Clause of the Fourteenth Amendment requires strict judicial
scrutiny of classifications among donors. Soon after filing its
complaint, Liberty PAC moved for a preliminary injunction.
In a comprehensive opinion, the judge denied the mo-
tion, reasoning that Liberty PAC was unlikely to succeed on
any of its claims in light of adverse Supreme Court prece-
dent. Ill. Liberty PAC v. Madigan, 902 F. Supp. 2d 1113 (N.D.
Ill. 2012). Specifically, the judge explained that the Court has
(1) routinely upheld similar gradations of contribution limits
for different classes of donors; (2) implied that political
parties must be treated more favorably than other groups
given the unique relationship between parties and candi-
dates; and (3) endorsed a materially similar waiver provi-
sion. Id. at 1118–25. The judge also ruled that Liberty PAC’s
argument for strict scrutiny under the Equal Protection
Clause was unlikely to succeed because the Court consistent-
ly applies intermediate scrutiny to contribution limits. Id. at
1126. We summarily affirmed that order.
In an amended complaint, Liberty PAC reasserted its ear-
lier claims and added a claim challenging the Act’s treat-
ment of legislative caucus committees. Liberty PAC alleged
that the legislative caucus committees present an outsized
No. 16-3585 7
risk of quid pro quo corruption given their special fundrais-
ing abilities and their leaders’ roles in the policymaking
process, yet the Act treats them more favorably than political
action committees, other organizational associations (includ-
ing corporations and unions), and individuals.
The defendants moved to dismiss the second complaint
for failure to state a claim. See FED. R. CIV. P. 12(b)(6). The
judge granted the motion with respect to Liberty PAC’s
original claims, incorporating the reasoning in his earlier
order denying preliminary injunctive relief. The judge
declined to dismiss the new claim pertaining to legislative
caucus committees, giving the parties an opportunity to
develop a more complete record. The parties filed cross-
motions for summary judgment on that claim, but the judge
denied both motions and held a bench trial.
Liberty PAC presented testimony from Dr. Marcus
Osborn, who offered three reasons why legislative caucus
committees should be classified as political action commit-
tees rather than political party committees: (1) the structure
of legislative caucus committees amplifies the risk of quid
pro quo corruption; (2) legislative caucus committees use
different strategies to fund candidates than political parties;
and (3) legislative caucus committees are more susceptible to
the influence of interest groups. The defendants presented
limited testimony from an official at the State Board of
Elections, who told the court that the Board has never made
a negative audit finding against a legislative caucus commit-
tee.
Following trial, the judge issued a Rule 52(a) order ex-
plaining his findings of fact and conclusions of law and
entering judgment for the defendants. The judge found
8 No. 16-3585
Dr. Osborn’s opinion testimony unconvincing and rejected
as implausible Liberty PAC’s contention that legislative
caucus committees “give legislative leaders materially more
power over their respective caucuses.” Ill. Liberty PAC v.
Madigan, 212 F. Supp. 3d 753, 760 (N.D. Ill. 2016). He found
that the substantial overlap between legislative caucus
committees and the political parties to which they are linked
was far more compelling: legislative leaders participate in
party activities as well as caucus, committee, and other
legislative work, and the parties and caucus committees
share the same general goals. The judge concluded that any
difference between legislative caucus committees and politi-
cal parties does not materially affect the risk of quid pro quo
corruption or its appearance, so Illinois’s decision to treat
them alike survived intermediate scrutiny.
II. Discussion
Liberty PAC challenges the judge’s rulings rejecting its
four First Amendment claims. 3 Three of those claims come
to us from a Rule 12(b)(6) dismissal; the remaining claim is
before us on a Rule 52(a) order after a bench trial. We review
a dismissal order de novo. Tagami v. City of Chicago, 875 F.3d
375, 377 (7th Cir. 2017). A claim to relief must be “plausible
on its face” to survive a Rule 12(b)(6) motion to dismiss. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). We review the
3 Liberty PAC did not appeal the dismissal of its equal-protection claim.
It does, however, advance an argument that the First Amendment
requires strict judicial scrutiny of contribution limits. This argument is
foreclosed by Buckley and its successors. As we explain in the text, the
Supreme Court has adopted a form of intermediate scrutiny for use in
First Amendment challenges to contribution limits.
No. 16-3585 9
judge’s factual findings following a bench trial for clear error
and his conclusions of law de novo. Winforge, Inc. v. Coach-
men Indus., 691 F.3d 856, 868 (7th Cir. 2012). A finding is
clearly erroneous if we are “left with the definite and firm
conviction that a mistake has been committed.” Id.
Most laws that burden political speech are subject to
strict scrutiny. Citizens United, 558 U.S. at 340. For challenges
to contribution limits, however, the Supreme Court has
adopted a form of intermediate scrutiny: “Campaign contri-
bution limits are generally permissible if the government can
establish that they are ‘closely drawn’ to serve a ‘sufficiently
important interest.’” Wis. Right to Life State PAC v. Barland,
664 F.3d 139, 152 (7th Cir. 2011) (quoting Buckley, 424 U.S. at
25). The prevention of “actual or apparent quid pro quo
corruption is the only interest the Supreme Court has recog-
nized as sufficient to justify campaign-finance restrictions.”
Id. at 153.
A. Individual Contribution Limits
Illinois allows corporations, labor unions, and other asso-
ciations to contribute $10,000 to candidates in a given elec-
tion cycle but limits individual contributions to $5,000.
Liberty PAC does not argue that these limits are unconstitu-
tional when considered independently. The Supreme Court
has routinely upheld similar base contribution limits as
“serving the permissible objective of combatting corrup-
tion,” McCutcheon v. FEC, 572 U.S. 185, 192–93 (2014), so long
as those limits do not restrict too much political speech, see
Buckley, 424 U.S. at 21. Using this framework, the Court has
invalidated individual contribution limits ranging from $200
to $400 as too low, Randall v. Sorrell, 548 U.S. 230, 249–53
(2006) (plurality opinion), but upheld individual contribu-
10 No. 16-3585
tion limits at or just above $1,000, Nixon v. Shrink Mo. Gov’t
PAC, 528 U.S. 377, 395–97 (2000); Buckley, 424 U.S. at 21.
Illinois’s limits on contributions to candidates—$5,000 for
individual donors and $10,000 for corporations, unions, and
other associations—easily survive scrutiny under this prece-
dent. Liberty PAC concedes as much.
Liberty PAC nonetheless contends that the contribution
limits impermissibly discriminate against individual donors
relative to corporations, unions, and other associations. It
maintains that the defendants have the burden to show that
“a contribution from an individual to a candidate that ranges
from $5,001 to $10,000 presents an intolerable threat of
corruption, while a contribution from a corporation, union,
or association to a candidate in that same range does not.”
Relatedly, Liberty PAC complains that the judge wrongly
dismissed this claim on the pleadings without putting the
defendants to this evidentiary burden.
This cluster of arguments misunderstands the govern-
ment’s burden in a campaign-finance challenge like this one.
The focus of the “closely drawn” inquiry in this context is
whether the contribution limits for individual donors are
above the “lower bound” at which “the constitutional risks
to the democratic electoral process become too great.”
Randall, 548 U.S. at 248 (plurality opinion). As long as the
challenged contribution caps exceed that lower boundary,
the Supreme Court has “extended a measure of deference to
the judgment of the legislative body that enacted the law.”
Davis, 554 U.S. at 737; see also Randall, 548 U.S. at 248 (plurali-
ty opinion) (“We cannot determine with any degree of
exactitude the precise restriction necessary to carry out the
statute’s legitimate objectives.”). That’s because “a court has
No. 16-3585 11
no scalpel to probe, whether, say, a $2,000 ceiling might not
serve as well as $1,000.” Buckley, 424 U.S. at 30 (quotation
marks omitted). 4
Liberty PAC’s claim is better understood as a contention
that the Act is fatally underinclusive. In other words, Liberty
PAC essentially argues that Illinois’s “failure to restrict other
speech equally damaging to [its anticorruption interest]
undercuts [its] position” that the limits on individual contri-
butions are closely drawn to prevent corruption or its ap-
pearance. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668
(2015). This is a difficult argument to make because “the
First Amendment imposes no freestanding ‘underinclusive-
ness limitation.’” Id. (quoting R.A.V. v. St. Paul, 505 U.S. 377,
387 (1992)). To state a cognizable First Amendment claim,
Liberty PAC must do more than allege that a law restricts
too little of another person’s speech, Davis, 554 U.S. at 737, or
that Illinois could have better served its anticorruption
interest by adjusting certain contribution limits up or down,
see Williams-Yulee, 135 S. Ct. at 1671 (rejecting the argument
4 The Court has also deferred to legislative judgments setting contribu-
tion limits when the challenge proceeds under the Equal Protection
Clause. See Cal. Med. Ass’n v. FEC, 453 U.S. 182, 201 (1981) (stating that
differing restrictions placed on different types of donors “reflect a
judgment by Congress that these entities have differing structures and
purposes, and that they therefore may require different forms of regula-
tion in order to protect the integrity of the election process”); McConnell
v. FEC, 540 U.S. 93, 188 (2003), overruled on other grounds by Citizens United
v. FEC, 558 U.S. 310, 319 (2010) (stating that “Congress is fully entitled to
consider the real-world differences” between donor groups). As we’ve
noted, Liberty PAC does not challenge the dismissal of its equal-
protection claim.
12 No. 16-3585
that different campaign-solicitation restrictions would have
better targeted the interest in avoiding corruption or its
appearance). Liberty PAC must instead plausibly plead that
Illinois was not actually concerned about corruption when it
promulgated the individual contribution limits. It has not
done so.
Buckley is instructive on this point. That iconic case re-
solved a broad-spectrum challenge to the Federal Election
Campaign Act of 1971 (“FECA”). Relevant here is the
Court’s rejection of a challenge to a provision setting the
contribution limit for political action committees five times
higher ($5,000) than the limit for ad hoc organizations and
individual donors ($1,000). 424 U.S. at 35–36. The Court
brushed aside the contention that this difference in treatment
undermined the regulatory aim of the limit on individual
donors and ad hoc organizations, saying it was “without
merit” because the higher limits for political action commit-
tees simply “enhance[d] the opportunity for bona fide
groups to participate in the election process.” Id.
Similarly here, Illinois could set higher limits for contri-
butions from corporations, unions, and associations without
fatally undermining the anticorruption interest served by the
somewhat lower limits on contributions from individual
donors. Indeed, the Court rejected a similar challenge in
Buckley despite a much larger disparity between the limits
on donor categories than is at issue here. Liberty PAC has
not pointed to any case that would authorize us to invalidate
Illinois’s $5,000 contribution limit for individual donors
merely because unions, corporations, and other associations
can contribute twice that amount. In light of Buckley, and
considering the limited nature of the underinclusiveness
No. 16-3585 13
inquiry and the utter lack of support for Liberty PAC’s
position, the judge correctly dismissed this claim on the
pleadings.
B. Political Party Committees
Liberty PAC next contends that the Act violates the First
Amendment by exempting political parties from the limits
on contributions to candidates in a general election. As
before, Liberty PAC does not challenge the exemption
standing alone. See Davis, 554 U.S. at 737 (“There is … no
constitutional basis for attacking contribution limits on the
ground that they are too high.”). Again, Liberty PAC argues
that treating political parties more favorably renders the
limits on individuals and PACs fatally underinclusive.
Our analysis begins with FEC v. Colorado Republican Fed-
eral Campaign Committee (“Colorado II”), 533 U.S. 431 (2001).
There the Court upheld federal limits on expenditures by
political parties in coordination with their candidates, which
were deemed to be the equivalent of contributions. Id. at
455–56. Applying the same intermediate-scrutiny test that
applies to limits on contributions to candidates by individu-
als and nonparty organizations, the Court accepted the
government’s argument that the coordinated expenditure
limits were closely drawn to serve the important interest of
preventing “the risk of corruption (and its appearance)
through circumvention of valid contribution limits.” Id. at
456.
It does not follow from Colorado II, however, that the First
Amendment forbids regulation that treats political parties
more favorably when it comes to contribution limits, as
Liberty PAC appears to argue. Indeed, the coordinated
14 No. 16-3585
expenditure limits at issue in Colorado II—ranging from
$67,560 to $1,636,438 for U.S. Senate candidates, depending
on state population—were vastly higher than the $1,000
limit on individual contributions to a candidate and the
$5,000 limit on PACs. Id. at 439 n.3, 442 n.7.
And the four dissenters in Colorado II expressed their
view that a political party’s contributions to its candidates
cannot be limited at all. See id. at 473–82 (Thomas, J., dissent-
ing). The dissenters explained that “[t]he very aim of a
political party is to influence its candidate’s stance on issues
and, if the candidate takes office or is reelected, his votes.”
Id. at 476 (quotation marks omitted). That, the dissent said,
“is the very essence of our Nation’s party system of govern-
ment.” Id. at 477. So while it’s possible to “speak of an
individual citizen or a political action committee corrupting
or coercing a candidate, … [w]hat could it mean for a party
to ‘corrupt’ its candidate or to exercise ‘coercive’ influence
over him?” Id. (internal quotation marks omitted).
Two years later in McConnell v. FEC, the Court rejected
an argument that the Bipartisan Campaign Reform Act of
2002 (“BCRA”) unconstitutionally discriminates against
political parties as compared to special-interest groups like
the National Rifle Association and American Civil Liberties
Union. 540 U.S. 93, 187–88. The Court explained that Con-
gress may set different rules for political parties than other
groups:
BCRA actually favors political parties in many
ways. Most obviously, party committees are
entitled to receive individual contributions that
substantially exceed FECA’s limits on contribu-
tions to nonparty political committees; indi-
No. 16-3585 15
viduals can give $25,000 to political party
committees whereas they can give a maximum
of $5,000 to nonparty political committees. In
addition, party committees are entitled in effect to
contribute to candidates by making coordinated ex-
penditures, and those expenditures may greatly ex-
ceed the contribution limits that apply to other
donors.
More importantly, however, Congress is fully
entitled to consider the real-world differences be-
tween political parties and interest groups when
crafting a system of campaign finance regulation.
Interest groups do not select slates of candi-
dates for elections. Interest groups do not de-
termine who will serve on legislative
committees, elect congressional leadership, or
organize legislative caucuses. Political parties
have influence and power in the Legislature
that vastly exceeds that of any interest group.
As a result, it is hardly surprising that party af-
filiation is the primary way by which voters
identify candidates, or that parties in turn have
special access to and relationships with federal
officeholders. Congress’[s] efforts at campaign fi-
nance regulation may account for these salient dif-
ferences.
Id. at 188 (emphases added) (citations omitted).
Colorado II and McConnell establish the principle that
campaign-finance laws may draw distinctions between
political parties and other political donors—indeed, may
substantially favor them in setting contribution limits—
16 No. 16-3585
without running afoul of the First Amendment. Accordingly,
Illinois’s choice to allow political parties to provide unlim-
ited support to their candidates in a general election does
not “raise[] a red flag” that the state is not actually concerned
about corruption or its appearance elsewhere in the Act.
Williams-Yulee, 135 S. Ct. at 1668.
C. Waiver Provision
Liberty PAC next contends that the Act’s waiver provi-
sion—lifting contribution limits for all candidates in a race if
one candidate’s self-funding or support from independent
expenditure groups exceeds certain ceilings—fatally under-
mines Illinois’s anticorruption rationale for the limits on
individual and PAC donations. As Liberty PAC sees it, the
waiver rule was designed to level the playing field, an
impermissible justification for campaign-finance restrictions.
See generally Ariz. Free Enter. Club’s Freedom Club PAC v.
Bennett, 564 U.S. 721, 749–50 (2011) (rejecting equalization of
resources as a compelling governmental interest). Liberty
PAC also argues that the provision impermissibly favors
incumbents. See, e.g., Randall, 548 U.S. at 268 (Thomas, J.,
concurring) (reasoning that contribution limits that ad-
vantage incumbents may not be closely drawn to prevent
corruption or its appearance).
The Court considered the constitutionality of a waiver
provision in Davis v. FEC, 554 U.S. 724. At issue there was
BCRA’s “so-called Millionaire’s Amendment,” which in-
creased the contribution limits for one candidate if his
opponent’s self-funding plus expenditures exceeded
$350,000. Id. at 729. The Court held that the “asymmetric”
waiver was unconstitutional because it “impose[d] an
unprecedented penalty on any candidate who robustly
No. 16-3585 17
exercises” the First Amendment right to engage in political
speech. Id. at 739.
Importantly, however, the Court reasoned that if the “el-
evated contribution limits applied across the board, [the self-
funded candidate] would not have any basis for challenging
those limits.” Id. at 737. So “if [the Millionaire’s Amendment]
simply raised the contribution limits for all candidates,” then
a First Amendment challenge “would plainly fail.” Id. As the
Court explained: “[A] candidate who wishes to restrict an
opponent’s fundraising cannot argue that the Constitution
demands that contributions be regulated more strictly.” Id.
Put somewhat more directly, there is “no constitutional basis
for attacking contribution limits on the ground that they are
too high.” Id.
Though the Court was speaking hypothetically, this pas-
sage bears directly on Liberty PAC’s challenge to the Illinois
waiver provision, which lifts contribution limits “across the
board”—that is, “for all candidates”—when one candidate’s
self-funding exceeds a certain threshold. As the Court’s
reasoning in Davis makes clear, a symmetrical waiver provi-
sion like this one survives constitutional scrutiny.
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,
564 U.S. 721, is also instructive. Bennett was a challenge to a
state campaign-finance law that provided public funding to
candidates who agreed to adopt certain self-funding and
expenditure limits. Id. at 728–29. Those candidates also
received matching funds if a privately financed opponent’s
expenditures exceeded a certain threshold. Id. The Court
held that the matching-funds provision violated the First
Amendment because it “impermissibly burden[s] (and thus
reduc[es]) the speech of privately financed candidates and
18 No. 16-3585
independent expenditure groups.” Id. at 741. Here, in con-
trast, Illinois’s waiver provision does not restrict or tether
the speech of some candidates to the spending of others.
Each dollar spent by a candidate in excess of the spending
threshold does not “generate[] … adversarial dollars in
response.” Id. at 738.
Finally, it’s worth repeating that underinclusiveness
claims occupy difficult theoretical terrain. See Williams-Yulee,
135 S. Ct. at 1668. When contribution limits are equally raised
for all speakers, no speakers or viewpoints are favored or
disfavored. The judge properly dismissed this claim.
D. Legislative Caucus Committees
Finally, Liberty PAC challenges the judge’s factual find-
ings that legislative caucus committees are sufficiently
similar to political party committees to justify their similar
treatment under the Act. Liberty PAC argues that legislative
caucus committees create unique opportunities for legisla-
tive leaders to engage in corruption.
Before proceeding, we note that Liberty PAC’s challenge
to the limits on legislative caucus committees essentially
mirrors its attack on the exemption for political parties. As
before, however, Illinois’s decision to treat legislative caucus
committees like political party committees cannot be chal-
lenged on the ground that the contribution limits are too
high. See Davis, 554 U.S. at 737. So once again, Liberty PAC is
left to argue that Illinois’s more generous treatment of
legislative caucus committees fatally undermines the anti-
corruption rationale for its limits on contributions from
PACs.
No. 16-3585 19
Taking his cue from McConnell’s discussion of the “real-
world differences” between political parties and other
interest groups, 540 U.S. at 188, the judge found that legisla-
tive caucus committees “are most akin to political parties”
for purposes of campaign-finance regulation, Ill. Liberty PAC,
212 F. Supp. 3d at 767. The Supreme Court has said that
congressional caucus committees—the federal analog to
legislative caucus committees—are “identifiable as part of
their respective party.” Id. (quoting FEC v. Democratic Senato-
rial Campaign Comm., 454 U.S. 27, 40 n.20 (1981)). Legislative
caucus committees align with their respective parties and
have similar influence over their members, and in that sense
are more closely analogous to party committees than to
political action committees. Given the ties and structural
similarities between legislative caucus committees and
political parties, the judge found that Illinois’s decision to
treat them the same for purposes of contribution limits cast
no doubt on the anticorruption justification for the limits on
individuals, PACs, and other donors.
Liberty PAC maintains that the judge overlooked mean-
ingful structural differences between the legislative caucus
committees and political parties, the most significant of
which is that legislative leaders have exclusive control over
their legislative caucus committees, which allows them to
use their committees to serve their own personal interests. A
legislative leader may use his legislative caucus committee
to consolidate power, maintain his position at the head of his
caucus, and promote his personal policy agenda. Liberty
PAC also points to Illinois’s treatment of different types of
legislator-to-legislator contributions. While the leader of a
legislative caucus committee may make unlimited contribu-
tions during a general election (just like the political parties
20 No. 16-3585
to which they are tied), a candidate’s committee may con-
tribute a maximum of $50,000.
The judge rejected these arguments largely because a leg-
islative leader’s role in the statehouse is a de facto leadership
position in the political party itself. The goal of the party and
the legislative leader alike is to wield influence over the
legislative policymaking process. We find no error in this
reasoning.
Second, Liberty PAC asserts that the judge “lacked any
basis” to reject Dr. Osborn’s testimony because the defend-
ants presented no evidence at trial to rebut his testimony.
But the judge was not required to accept Dr. Osborn’s
opinions at face value. As the fact-finder, he was entitled to
reject testimony that he found to be unpersuasive, even if its
source was an expert witness. And the judge here reasonably
rejected Dr. Osborn’s testimony as insufficient to undermine
Illinois’s decision to treat legislative caucus committees as
political party committees for purposes of setting contribu-
tion limits.
To start, Dr. Osborn testified that legislative leaders can
use their control over their caucuses to wield influence over
individual legislators, and the Act’s exclusivity require-
ment—prohibiting a candidate from accepting contributions
from more than one caucus committee—can make legislators
beholden to their caucus leaders. The judge reasoned that
these institutional controls do not make legislative caucus
committees meaningfully different from the political parties
with which they are aligned. And he viewed the exclusivity
requirement as largely a red herring because candidates do
not solicit or receive contributions from the other party’s
caucus.
No. 16-3585 21
Next, Dr. Osborn testified that legislative caucus commit-
tees are more susceptible than political parties to outside
influence because their donors are less diverse. For support
he provided the donor profile for legislative caucus commit-
tees and compared it with a theoretical donor profile for
political parties. The judge rightly found the comparison
between actual and theoretical data flawed. The data on
actual donations to Illinois political parties is readily availa-
ble, and Dr. Osborn’s failure to use it in his comparison
suggests that it would have undermined his theory.
Finally, Dr. Osborn testified that political parties typical-
ly pursue an “expansion” strategy, deploying their contribu-
tions to enhance the number of their officeholders. Political
action committees, in contrast, pursue an “access” strategy
to influence legislators’ votes. Ill. Liberty PAC, 212 F. Supp.
3d at 761. Legislative caucus committees, he said, use access
strategies because they contribute to candidates in primary
races and to candidates who win the general election by
wide margins. But as the judge recognized, these actions are
equally consistent with an expansion strategy. Political
parties sometimes take sides in primary races to assist
candidates they deem more electable.
In short, the judge reasonably declined to accept
Dr. Osborn’s testimony and adequately explained his rea-
sons for doing so. The clear-error standard for factual find-
ings entered after a bench trial is “highly deferential.”
Morisch v. United States, 653 F.3d 522, 528 (7th Cir. 2011). “[I]f
a factual finding is plausible in light of the record viewed in
its entirety, we may not reverse that finding even if we
would have decided the matter differently had we been the
trier of fact.” Id. (quotation marks omitted). The judge’s
22 No. 16-3585
findings here easily surpass this deferential standard, and
we have no warrant to substitute our own.
AFFIRMED.