Ctr. For Individual Freedom v. Madigan

• Decision Date: 26 August 2010
• Docket Number: No. 10 C 4383,10 C 4383
• Citation: 735 F.Supp.2d 994
• Parties: CENTER FOR INDIVIDUAL FREEDOM, Plaintiff, v. Lisa M. MADIGAN, Attorney General of the State of Illinois, Bryan Schneider, Chairman and Member of the Illinois State Board of Elections, Wanda L. Rednour, Vice Chair and Member of the Illinois State Board of Elections, Albert Porter, Member of the Illinois State Board of Elections, Jesse R. Smart, Member of the Illinois Board of Elections, Patrick A. Brady, Member of the Illinois State Board of Elections, William M. McGuffage, Member of the Illinois State Board of Elections, John R. Keith, Member of the Illinois State Board of Elections, and Robert J. Waters, Member of the Illinois State Board of Elections, Defendants. Illinois Campaign for Political Reform, Amicus.
• Court: U.S. District Court — Northern District of Illinois

735 F.Supp.2d 994

CENTER FOR INDIVIDUAL FREEDOM, Plaintiff,

v. Lisa M. MADIGAN, Attorney General of the State of Illinois, Bryan Schneider, Chairman and Member of the Illinois State Board of Elections, Wanda L. Rednour, Vice Chair and Member of the Illinois State Board of Elections, Albert Porter, Member of the Illinois State Board of Elections, Jesse R. Smart, Member of the Illinois Board of Elections, Patrick A. Brady, Member of the Illinois State Board of Elections, William M. McGuffage, Member of the Illinois State Board of Elections, John R. Keith, Member of the Illinois State Board of Elections, and Robert J. Waters, Member of the Illinois State Board of Elections, Defendants.Illinois Campaign for Political Reform, Amicus.

No. 10 C 4383.

United States District Court,

N.D. Illinois,

Eastern Division.

Aug. 26, 2010.

Thomas W. Kirby, Caleb P. Burns, Wiley Rein LLP, Washington, DC, Meredith Deddish Schacht, Steven F. Pflaum, Neal, Gerber & Eisenberg, Chicago, IL, for Plaintiff.

Thomas A. Ioppolo, Alice Elizabeth Keane, Michael T. Dierkes, Illinois Attorney General's Office, Chicago, IL, for Defendants.

OPINION AND ORDER

WILLIAM T. HART, District Judge.

Plaintiff Center for Individual Freedom ("CFIF") has filed suit against the Illinois Attorney General and members of the Illinois State Board of Elections seeking to enjoin the enforcement of certain registration, disclosure, and reporting provisions ¹ of the Illinois Election Code. Plaintiff contends it should not be subject to reporting provisions that may be required of entities that expend and/or receive money for advocacy related to elections. On a facial challenge, plaintiff contends certain provisions of Illinois law are invalid for two reasons. Plaintiff contends reporting provisions pertaining to nonprofit organizations violate equal protection because labor unions are excluded from the statute's application. Plaintiff contends there is an equal protection violation because unions are treated more favorably by having less stringent reporting requirements. Plaintiff also contends the reporting requirements applicable to nonprofit organizations and political committees should be held to be unenforceable because the type of speech that subjects an entity to the reporting requirements is vaguely defined. Plaintiff contends that its decision to engage in certain advocacy during the current election cycle ² will be affected by whether certain speech subjects it to the reporting requirements. Presently pending is plaintiff's motion for a preliminary injunction. The parties agree that the issue of a preliminary injunction can be resolved on the papers before the court,³ without the need for testimony.⁴

CFIF is a nonprofit corporation under § 501(c)(4) of the Internal Revenue Code. It desires "to speak about judicial matters, legal reform, and other justice-related public policy issues in Illinois during the period prior to the upcoming November 2, 2010 general election ... when candidates provide useful illustrations of [CFIF]'s concerns." Compl. ¶ 4(d). CFIF's "planned speech would refer to candidates in upcoming elections and to issues of public importance related to those candidates, but would not use explicit words such as 'vote for' or 'defeat' to expressly advocate the election or defeat of any candidate." Id. ¶ 4(e) (emphasis added).

Illinois law provides: "Each nonprofit organization, except for a labor union, that accepts contributions, makes contributions, or makes expenditures during any 12-month period in an aggregate amount exceeding $5,000 (I) on behalf of or in opposition to public officials, candidates for public office, or a question of public policy or (II) for electioneering communications shall register with the State Board of Elections." 10 ILCS 5/9-7.5(a). Registration consists of the name, address, and purpose of the organization and the identification of principal officers and custodians of financial records. Id. 5/9-7.5(a)(1)-(3). The nonprofit organization must file semiannual reports of campaign contributions and expenditures, with the report for the second half of the year being due January 20 of the following year.⁵ Id. §§ 5/9-7.5(c), 5/9-10(b)- (c); Ill. Admin. Code § 100.130(b). Included among the items to be reported are: funds on hand; the total amount of contributions collected and transfers of funds made; the name and address of each person donating more than $150; the occupation and employer of each person donating more than $500; the name and address of each organization or political committee to which or from which more than $150 was transferred; and other expenditures exceeding $150. 10 ILCS 5/9-7.5(b). By 15 days prior to this November's general election, a nonprofit organization that is subject to registration and which expends or contributes more than $500 on behalf of or in opposition to a candidate for office or a public question on the ballot, must file a report of contributions received and/or made up to 30 days before the election.⁶ 10 ILCS 5/9-7.5(c), 5/9-10(b); Ill. Admin. Code §§ 100.70(d), 100.130(b).

Essentially identical reporting requirements apply to a "political committee." 10 ILCS 5/9-10, 9-13, 9-14. Assuming plaintiff engages in covered speech and makes the requisite level of expenditures, even absent the statutory requirements specifically applicable to a nonprofit organization, plaintiff would be subject to the reporting requirements based on being a political committee. A political committee includes a "corporation or other organization ... which ... makes expenditures during any 12-month period in an aggregate amount exceeding $3,000 on behalf of or in opposition to a candidate or candidates for public office ... [or] in support of or in oppositionto any question of public policy to be submitted to the electors ... [or] for electioneering communications." Id. §§ 5/9-1.7(a), (b), (d), -1.8(a), (b), (d).⁷See also id. § 5/9-1.9.⁸

The Election Code defines "expenditure" as "a payment, distribution, purchase, loan, advance, deposit, or gift of money or anything of value, in connection with the nomination for election, or election, of any person to public office." Id. § 5/9-1.5 (emphasis added).

The Election Code defines "electioneering communication" as including "any broadcast, cable, or satellite communication, including radio, television, or Internet communication, that (1) refers to (i) a clearly identified candidate or candidates who will appear on the ballot for ... election, or retention, (ii) a clearly identified political party, or (iii) a clearly identified question of public policy that will appear on the ballot, (2) is made within (i) SO days before a general election ..., (3) is targeted to the relevant electorate, and (4) is susceptible to no reasonable interpretation other than as an appeal to vote for or against a clearly identified candidate for ... election, or retention, a political party, or a question of public policy." 10 ILCS 5/9-1.14(a). See also id. §§ 5/9-8.6(b), 28.5.⁹ Plaintiff does not contend that the definition of electioneering communication is unconstitutionally vague nor that requiring an organization that engages in such communications to register violates the Constitution. Plaintiff, however, contends that it does not intend to engage in such communications during this election season. For present purposes, it will be assumed that plaintiff plans to expend funds on communications described in ¶ 4(e) of its Complaint, but none of those communications will qualify as electioneering communications because they will not satisfy § 9-1.14(a)(4)

Before the court is a motion for a preliminary injunction.

An equitable, interlocutory form of relief, " 'a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.' " Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 389 (7th Cir.1984) (quoting Warner Bros. Pictures Inc. v. Gittone, 110 F.2d 292, 293 (3d Cir.1940) (per curiam)). To determine whether a situation warrants such a remedy, a district court engages in an analysis that proceeds in two distinct phases: a threshold phase and a balancing phase.

To survive the threshold phase, a party seeking a preliminary injunction must satisfy three requirements. See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.2001); Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). First, that absent a preliminary injunction, it will suffer irreparable harm in the interim period prior to finalresolution of its claims. Ty, 237 F.3d at 895. Second, that traditional legal remedies would be inadequate. Id. And third, that its claim has some likelihood of succeeding on the merits. Id. If the court determines that the moving party has failed to demonstrate any one of these three threshold requirements, it must deny the injunction. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.1992). If, however, the court finds that the moving party has passed this initial threshold, it then proceeds to the balancing phase of the analysis. Id.

In this second phase, the court, in an attempt to minimize the cost of potential error, see Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593-94 (7th Cir.1986), "must somehow balance the nature and degree of the plaintiff's injury, the likelihood of prevailing at trial, the possible injury to the defendant if the injunction is granted, and the wild card that is the 'public interest,' " Lawson Prods., 782 F.2d at 1433. Specifically, the court weighs the irreparable harm that the moving party would endure without the protection of the preliminary injunction against any irreparable harm the nonmoving party would suffer if the court were to grant the requested relief. Abbott Labs., 971 F.2d at 11-12. In so doing, the court employs a sliding scale approach: "[t]he more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his

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