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No. 16-3585 in the UNITED STATES COURT of APPEALS for THE Case: 16-3585 Document: 14 Filed: 01/17/2017 Pages: 109 No. 16-3585 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ILLINOIS LIBERTY PAC, et al., Plaintiffs-Appellants, v. LISA MADIGAN, Attorney General of Illinois, in her official capacity, et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois Case No. 12 C 5811 The Honorable Gary Feinerman, Judge Presiding BRIEF AND REQUIRED SHORT APPENDIX OF PLAINTIFFS-APPELLANTS Jacob H. Huebert Jeffrey M. Schwab LIBERTY JUSTICE CENTER 190 S. LaSalle Street, Suite 1500 Chicago, Illinois 60603 (312) 263-7668 Counsel for Plaintiffs-Appellants, Illinois Liberty PAC, Edgar Bachrach, and Kyle McCarter Case: 16-3585 Document: 14 Filed: 01/17/2017 Pages: 109 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: 16-3585 Short Caption: Illinois Liberty PAC, et al. v. Lisa Madigan, et al. To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Illinois Liberty PAC Edgar Bachrach Kyle McCarter (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Liberty Justice Center (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and None ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: None Attorney's Signature: /s/ Jacob H. Huebert Date: 1/13/2017 Attorney's Printed Name: Jacob H. Huebert Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes X No Address: 190 S. LaSalle St., Suite 1500 Chicago, IL 60603 Phone Number: 312-263-7668 Fax Number: 312-263-7702 E-Mail Address: [email protected] rev. 01/08 AK Case: 16-3585 Document: 14 Filed: 01/17/2017 Pages: 109 CIRCUIT RULE 26.1 DISCLOSURE STATEMENT Appellate Court No: 16-3585 Short Caption: Illinois Liberty PAC, et al. v. Lisa Madigan, et al. To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable if this form is used. [ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED AND INDICATE WHICH INFORMATION IS NEW OR REVISED. (1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3): Illinois Liberty PAC Edgar Bachrach Kyle McCarter (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Liberty Justice Center (3) If the party or amicus is a corporation: i) Identify all its parent corporations, if any; and None ii) list any publicly held company that owns 10% or more of the party’s or amicus’ stock: None Attorney's Signature: /s/ Jeffrey M. Schwab Date: 1/13/2017 Attorney's Printed Name: Jeffrey M. Schwab Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No X Address: 190 S. LaSalle St., Suite 1500 Chicago, IL 60603 Phone Number: 312-263-7668 Fax Number: 312-263-7702 E-Mail Address: [email protected] rev. 01/08 AK Case: 16-3585 Document: 14 Filed: 01/17/2017 Pages: 109 TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................. i TABLE OF AUTHORITIES ......................................................................................... iv JURISDICTIONAL STATEMENT ............................................................................... 1 STATEMENT OF THE ISSUES ................................................................................... 2 STATEMENT OF THE CASE ....................................................................................... 3 SUMMARY OF THE ARGUMENT ............................................................................ 13 STANDARD OF REVIEW ........................................................................................... 18 ARGUMENT ................................................................................................................ 19 I. First Amendment challenges to campaign contribution limits that treat some political contributors more favorably than others demand rigorous scrutiny….. .......................................................................................... 16 II. This Court should reverse the partial dismissal of Plaintiffs’ claim because Defendants did not meet their burden to show that the Act’s contribution limits are narrowly tailored to prevent corruption. ................... 21 A. This Court should reverse the dismissal of Plaintiffs' challenge to the Act's discrimination against individual citizens and in favor of corporations, unions, and other associations. ................................... 21 B. This Court should reverse the dismissal of Plaintiffs' challenge to Illinois' contribution limits based on the Act's removal of the limits in response to self-funding and independent expenditures. ................. 26 C. This Court should reverse the dismissal of Plaintiffs' challenge to Illinois' contribution limits based on the Act's lack of limits on political party committees. ..................................................................... 33 III. The district court erred in holding that the Act’s limits are narrowly tailored to prevent corruption despite their favoritism toward legislative caucus committees. .......................................................................................... 36 A. Defendants failed to meet their burden at trial .................................... 37 i Case: 16-3585 Document: 14 Filed: 01/17/2017 Pages: 109 B. It is apparent from the Act's face that its preferential treatment of legislative caucus committees does not reflect narrow tailoring to prevent corruption. ............................................................................. 38 1. Legislative leaders can use caucus committees to serve their personal interests. ....................................................................... 39 2. Contributions by legislative caucus committees and PACs have a similar potential to corrupt. ............................................ 39 3. The Act's inconsistent treatment of legislator-to-candidate contributions renders it underinclusive. .................................... 40 4. Legislative caucus committees are different from other political party committees. .......................................................... 41 C. The district court committed clear error in rejecting Plaintiffs' expert's testimony that the Act's treatment of legislative caucus committees creates and enhances opportunities for corruption. .......... 44 1. The district court committed clear error in rejecting Dr. Osborn's testimony that legislative caucus committees resemble "leadership PACs more than they resemble ordinary party committees. ......................................................... 46 2. The district court committed clear error in rejecting Dr. Osborn's testimony that the likely combination of donors to legislative caucus committees would increase their contributions' potential to corrupt. ............................................. 48 3. The district court committed
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