Case: 1:12-cv-05811 Document #: 26 Filed: 08/21/12 Page 1 of 17 PageID #:472

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 0511 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS REPLY IN FURTHER SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION I. Introduction Illinois campaign finance law is so full of loopholes that it is virtually meaningless. Not only does it exempt from its coverage the biggest campaign spenders in the state political parties and their leaders the limits that are in place are easily circumvented. While Defendants incredibly claim that the Act contains many . . . provisions aimed at preventing circumvention of contribution limits, they fail to address the exemptions that deal a fatal blow to the Act:

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While 10 ILCS 5/9-8.5(b) limits the contributions candidate committees may make to other candidate committees, 5/9-8.5(c) allows candidate committees to circumvent the limits of 8.5(b) through their ability to make unlimited contributions to political parties, which in turn can make unlimited contributions to candidates. Further, while contributions from political action committees (PACs) to political parties have limits, parties may then pool PAC contributions and make unlimited contributions to the candidates of their choosing. 5/9-8.5(b) and (c). This is not conclusory argument as Defendants claim (Defs. Resp. 11). This circumvention can happen pursuant to the express language of the statute, and does happen. (Plf.s Exhs. 3-5, 14.)1 In fact, as Plaintiff Illinois Liberty PAC was preparing this Reply, the media began reporting on two contributions made by Service Employees International Union (SEIU) PACs totaling $97,000 to the Democratic Majority, which is chaired by Speaker Madigan. (Plf.s Exh. 14.) These contributions were made on the same day as a special session called by Governor Quinn aimed at pension reform for state and General Assembly workers, which SEIU opposed, which ended in failure when the Speaker refused to allow a floor vote on the measure. (Plf.s Exh. 14.) Other reports revealed that another SEIU PAC also made a $50,000 contribution to the Democratic Party, which also chaired by Speaker Madigan, on August 6, 2012; a $50,000 contribution to Citizens for John Cullerton (candidate committee), on August 13; and a $45,000 contribution to the Democratic Victory Fund, on August 10, 2012, which Cullerton chairs.

Defendants refer to the Acts prohibitions on public officials and candidates maintaining more than one candidate committee for each office they hold/seek, and on political parties maintaining more than one political party committee for each geographic location, as provisions aimed at preventing circumvention. (Defs. Resp. 3.) But these provisions are meaningless because the Act permits public officials to head up multiple party committees in addition to their own candidate committees, and also allows candidate committees to make unlimited contributions parties, and parties to make unlimited contributions to candidates. 10 ILCS 5/9-8.5(c); see also Plf.s. Exhs. 3-6.

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The Act allows the political parties to pool this money and make unlimited contributions to candidates, and allows Senator Cullerton to make unlimited contributions from his candidate committee to the party committee he chairs, the Democratic Victory Fund, from which he can then make unlimited contributions to candidates. Plaintiff cannot pool contributions in this manner, nor can any other political speaker. Defendants wholly ignore the Acts allowance for this circumvention, instead resorting to name-calling and making broad, unsupported proclamations about the Act (e.g., the Act aims to increase transparency and integrity), while attributing the Acts party loopholes to the legislature just taking it one step at a time. (Defs. Resp. 3, 7.) To be clear, this case is not about politics, except to the extent it shows the audacity of political leaders who use their power to legislate themselves above the law. This case is about constitutional principle, which must transcend politics. As set forth below and in its Memorandum in Support of its Motion, Plaintiff respectfully requests that its Motion for Preliminary Injunction be granted and the Act enjoined accordingly.2 II. The Act Violates Plaintiffs First Amendment Rights Defendants claim that Plaintiff does not question whether there is sufficient evidence of corruption in Illinois to justify limitations on PAC contributions under a closely drawn analysis. (Defs. Resp. 6.) But while Plaintiff will stipulate to the depth of political corruption in this state, the relevant issue in this case is not whether the state can enact contribution limits on PACs, but whether the manner in which the state regulates such speech is constitutional. Here, the Act creates loopholes and exemptions for certain speakers and contains provisions that

Though Defendants inexplicably claim that Plaintiff does not suggest the Act is actually intended to stifle the speech of PACs (Defs. Resp. 7), the Acts disparate treatment of Plaintiff and other nonparties, which by operation stifles Plaintiffs speech, is expressly set forth in Plaintiffs Complaint and Motion. (See Comp. 26-42; Besler declaration, Plf.s Exh. 1; Plf.s Mem. 2, 6-7, 13-14.)
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eliminate limits altogether in certain situations (when independent expenditures and self-funded candidates exceed certain spending amounts, but not when parties do). As a result, the Act raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. Brown v. Ent. Merchants Assn, 131 S.Ct. 2729, 2740 (2011). (Court struck down California law because it singled out the purveyors of video games for disfavored treatment at least when compared to booksellers, cartoonists, and movie producers and gave no persuasive reason why.) The Acts underinclusiveness undercuts any purported anticorruption interest Defendants misapprehend the cases that support Plaintiffs First Amendment claim, particularly Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), arguing that they do not involve campaign finance contribution limits, and more importantly . . . employ a strict scrutiny analysis. (Defs. Resp. 9.) While Rubin is not a campaign finance case, it is a First Amendment case involving the regulation of commercial speech, which is analyzed using an intermediate level of scrutiny.3 In Rubin, the Court found the exemptions and inconsistencies in the regulation brought into question the purpose of the regulation (which banned alcoholcontent labels on beer), and held that while the governments interest in combating alcohol strength wars remained a valid goal, the irrationality of [the] unique and puzzling regulatory framework where brewers remained free to disclose alcohol content in advertisements, but not on labels, contained loopholes that undermine[d] . . . efforts to prevent strength wars. 4 Id. at 488-89.

See Central Hudson Gas & Elec. Corp. v. Public Serv. Commn of N.Y., 447 U.S. 557, 566 (1980). (The Central Hudson test looks at whether the governments interest in regulating the speech is substantial and whether it is more extensive than is necessary to serve that interest.) 4 The Court further found that the regulation permitted brewers to signal high alcohol content through use of the term malt liquor, which the Court saw as a loophole because [o]ne would think that if the Government sought to suppress strength wars by prohibiting numerical disclosures of alcohol content, it
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In defense of the party exemptions, Defendants argue that legislatures rarely resolve massive problems in one fell regulatory swoop, and thus it is entirely proper for a legislature to focus on one aspect of quid pro quo corruption, rather than every conceivable instance, even if other types of reform could also curtail corruption. (Defs. Resp. 7-8) (citations omitted.) In support of this argument, they quote Buckley and Williamson v. Lee Optical Co.s statement that the legislature may address reform one step at a time rather than attacking an entire problem at once. Buckley, 424 U.S. at 105 (quoting Williamson, 348 U.S. 483, 489 (1955)). However, those cases involved equal protection claims, not First Amendment underinclusiveness claims.5 The section of Buckley that Defendants cite considered an equal protection challenge to a statute that provided public funding for candidates in primary elections but not for candidates who do not run in primaries. Buckley, 424 U.S. at 105-06. The Court rejected the claim, noting that the statute could reflect concern for undue influence in primary races and a lack of potential for corruption where candidates use petition drives to seek ballot access. Id. at 106. In other words, the statute did not treat similarly situated people differently and thus did not violate equal protection. Williamson which involved no First Amendment issues and was decided under rationalbasis review rejected an equal protection challenge to a statute that required a prescription for opticians to do certain things related to the provision of custom eyeglasses but did not require a prescription for the sale of ready-to-wear glasses. 348 U.S. at 485-89. The Court concluded that

would also preclude brewers from indicating higher levels of alcoholic beverages by using descriptive terms. Id. at 489. 5 Defendants cite Massachusetts v. EPA, 549 U.S. 497, 524 (2007), for the proposition that legislatures rarely resolve massive problems in one fell regulatory swoop. However, this quote came in response to the EPAs argument that the Court lacked jurisdiction because the regulation at issue was incremental and thus the case was not ripe. The Court held that to accept that premise would doom most challenges to regulatory action because agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.

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the differences between opticians and ready-to-wear retailers could warrant treating them differently because the record lacked evidence of invidious discrimination or that the groups were so similarly situated that they must be regulated in the same way. Id. at 489. Defendants also cite two First Amendment/underinclusiveness cases Ognibene v. Parkes, 671 F.3d 174 (2nd Cir. 2011) and Blount v. SEC, 61 F.3d 938 (D.C. Cir. 1995) but these likewise fail to support the Defendants argument because they involved contribution restrictions different from those of the Act. In Ognibene, the plaintiffs challenged New York City regulations that limited campaign contributions by people doing business with the city, arguing that the regulations were underinclusive because they did not apply to all contributors with the influence and incentive to engage in pay-to-play, specifically labor organizations and associations that do not have procurement contracts which qualify as business dealings. 671 F.3d at 191. The Court rejected this argument, concluding that the regulations reflected common sense by focusing on the specific threat of corruption that flows from business dealings with the City. Id. Ognibene also held that the regulations there were closely drawn because they were tailored to apply only to those who seek a benefit from the City; and, even then, only to those business dealings more likely linked to corruption (i.e., high value business transactions, and lobbyists, whose sole purpose is to influence City outcomes). Id. at 191. In Blount, the court upheld a rule that prohibited any broker, dealer, or municipalsecurities dealer who had contributed to a municipal officials campaign from engaging in municipal-securities business with the municipality in question for two years after making the contribution. 61 F.3d at 939-40. Like the regulations in Ognibene, this rule targeted a practice that was especially likely to give rise to a conflict of interest while declining to regulate other conduct where the risk of corruption would be too remote to warrant restraint. Id. at 947.

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Blount does not resemble this case because the rule at issue, unlike the Act, was closely drawn in a manner that actually served the governments anticorruption interest and did not contain arbitrary exemptions or loopholes. III. The Act violates Plaintiffs right to equal protection under the law Defendants cite no binding precedent to support their argument that Plaintiffs equal protection claim should be subject to an intermediate, exacting scrutiny analysis. In fact, as one case Defendants cite states, the Supreme Court has yet to decide what level of scrutiny applies to equal-protection challenges to laws restricting political contributions. Wagner v. FEC, 2012 WL 1255145 *10 (D.D.C. Apr. 16, 2012) (considering federal bans on political contributions from contractors doing business with the federal government). Thus, when the Wagner court settled on an intermediate standard of review in that case, it did so without precedent. Id. at *13.6 Similarly, Defendants citation to Green Party of Ct. v. Garfield, 616 F.3d 213, 229 (2nd Cir. 2010), claiming that it applie[d] Buckleys exacting scrutiny to the equal protection challenge, is misleading. (Defs. Resp. 9.) Buckley did not apply exacting scrutiny in an equal protection challenge restricting a fundamental right. Instead, Buckley addressed restrictions on access to the electoral process, which are subject to exacting scrutiny review. Buckley, 424 U.S. at 93-94. Therefore, Buckley does not support Defendants assertion that where an equal protection challenge implicates a First Amendment right, a court should apply the scrutiny level that would apply if the same law were being challenged under the First Amendment. (Defs. Resp. 9.)

While Wagner cites to Fed. Election Commn v. Beaumont, 539 U.S. 146, 161 (2003), ostensibly in support of its conclusion that an equal protection challenge that implicates contribution limits is subject to intermediate scrutiny, Beaumont involved only a First Amendment claim, not an equal protection claim.
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Likewise, Defendants unexplained assertion that applying strict scrutiny to equal protection challenges to contribution limits would result in every First Amendment challenge being reframed as an equal protection challenge is incorrect. (Defs. Resp. 10.) Claims that low contribution limits excessively burden political expression or association are subject to intermediate scrutiny and cannot simply be restated as equal protection claims. See e.g., Randall v. Sorrell, 548 U.S. 230, 237-62 (2006) (striking low contribution limits that applied equally to individuals, parties and PACs). Claims that contribution limits discriminate in favor of or against a particular group, however, can be the subject of an equal protection claim and thus subject to strict scrutiny. Regardless of the scrutiny, strict or intermediate, the Act treats parties and nonparties disparately and is neither narrowly tailored nor closely drawn to serve a compelling or sufficiently important interest in preventing quid pro quo corruption or the appearance thereof. Defendants attempt to justify the states unequal treatment of parties and nonparty political speakers by pointing out that [a]t least seven other states regulate political parties differently [from] PACs, and at least four do so by capping PAC contributions while leaving party contributions unlimited. (Defs. Resp. 14; Defs. Exh. B.) To the extent such a comparison is even relevant, it is important to note that Defendants Exhibit B does not provide a comprehensive review of state campaign finance limits, but only a review of limits on contributions to candidates. Therefore, using Exhibit B, it is not possible to fully compare the Act to any of the other state statutes to determine whether they are similar. However, a comprehensive review of the statutes reveals that of the seven states Defendants cite, six limit the amount of money political parties can receive, in contrast with the Illinois Act, which allows

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unlimited candidate contributions to parties, party contributions to candidates, and party-to-party contributions in general elections (as well as primaries as of July 2, 2013).7 A. The legislative history shows PACs and Parties are similarly situated

The Acts legislative history shows that the legislature repeatedly willfully ignored ample evidence that PACs and parties are similarly situated. The state has had at least two chances to treat parties as it does nonparties, when the Act was passed in 2009 and when it was amended in 2012, but it has refused to do so. In 2009, the House would not even allow consideration of an amendment that would have limited party contributions to candidates in general elections. See Ill. H.R., 96th Gen Assemb. 81st Legis. Day, at 131-145) (Oct. 29, 2009); and amendment 4 (Plf.s Exh. 12). Further, this refusal came despite floor debate on the Act that was replete with calls for parties to be treated similarly to other political speakers: Leader Cross: The State Republican Party [in] the Primary cycle spent [$400,000]. In the General Election, they spent five times that amount . . . The Democrat Party in the Primary season back then spent [$108,000]. In the General Election, they spent 40 times that amount. . . Friends of Michael Madigan spent [$660,000] in the Primary. In the General, that was up three times . . . Citizens for Cross spent [$250,000] in the Primary season, and the General went up to 2.1 . . . to say were going to regulate Primaries really does not get to the crux of the problem, does nothing to change the status quo . . . [E]verybody else is regulated with the exception of the four Legislative Leaders. Ill. H.R., 96th Gen Assemb. 81st Legis. Day, at 128-129 (Oct. 29, 2009). (Plf.s Exh. 12.)

Cross: [U]nder the present bill . . . the Legislative Leaders get stronger in their ability to raise money and dole out money in the process, while individual Members actually get

California limits the amount parties can receive from any source during a calendar year to $25,000 (CA GOVT 85303(b)). Vermont limits the amount political parties can receive to $2,000 from any single sources during a two-year general election cycle. 17 V.S.A. 2805(a). North Carolina limits parties from receiving more than $4,000 from any source during a calendar year. N.C.G.S.A. 163-278.13 (a). New York limits parties from receiving more $62,500 from any source in one year. NY ELEC 14-114, 10(a). New Jersey limits the amount a state political party may receive in a single year to $72,000 from a national party, $7,200 from any municipal committee of a political party, and $37,000 from any other source. N.J.S.A. 19:44A-11.4(2). Kansas limits state parties from receiving more than $25,000 from a national party, $5,000 from a political committee, and $15,000 from any other source. K.S.A. 254153(d). Illinois law does not limit what parties can receive from candidate committees or other political parties (except under the soon to be expiring primary contribution limits). See 10 ILCS 5/9-8.5(c).

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weaker, and their ability to raise money is capped. And while the capping process is supported by many, the idea of the Legislative Leaders . . . having additional power and . . . money and not being restricted does not sit well with a state that has struggled time and time again with ethical lapses. Id. at 127. Cross: What bothers me . . . most about this Bill is that the power and the money and the control . . . stays vested in four people. Id. at 139-41.

Cross: Its time today . . . not another study, not another commission, not another . . . were going to think about it . . . The step forward has to happen today. Id. at 145.

Rep. Coulson: [W]e should not accept a reform Bill that does not impose caps on political Parties and Legislative Leaders during both the Primary and the General Election . . . It gives those without caps a huge advantage. . . . [I]t is not reform. Id. at 146-147. (quotations omitted.)

Senator Jacobs: I have something here. Its a trash can for any Senator who wants to put their independence in it, because what youre doing by limiting campaign contributions is ensuring that the leaders can continue to control this process. And if anybody thinks the leaders dont control the process, I want to remind you that they are not limited in this. Ill. Sen., 96th Gen Assemb. 71st Legis. Day, at 53-54 (Oct. 30, 2009). (Plf.s Exh. 12.)

Senator Murphy: [T]his [legislation] is frankly all about political cover coming up into an election year. And unfortunately the people want more than that. They deserve more than that. This is not good enough, and if you want to start to win back the faith of the people of this State, give up some of your power willingly before they take it away at the ballot box. Id. at 65.

Leader Cross: [T]o say were going to regulate Primaries really does not get to the crux of the problem, does nothing to change the status quo. The power, the money, the control, is all centered on the money thats handed out during the General Elections . . . everybody else is regulated with the exception of the four Legislative Leaders. Ill. H.R., 96th Gen Assemb. 81st Legis. Day, at 128-129 (Oct. 29, 2009). (Plf.s Exh. 12).

The legislature has also ignored the recommendations of the very commission instituted to recommend reforms to it in the first place, the Illinois Reform Commission (IRC), which then-Lieutenant Governor Quinn established in 2009 in the wake of the arrest of then-Governor Blagojevich. (IRC Report, pp.1, 17-18, Plf.s Exh. 11.) The IRC recommended limits on contributions from parties and nonparties alike because a holistic approach was necessary to achieve real reform, noting, we cannot endorse efforts to selectively implement some reforms while ignoring other key proposals and that [h]alf-measures will not suffice to repair our States troubled infrastructure or our citizens broken confidence. (Id. at 2, 17-18.)

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Specifically, the IRCs report urged that reform be comprehensively addressed (Id. at 2) and include limitations on contributions from state parties to candidates in general, legislative, state and local elections $50,000, $30,000 and, $10,000 respectively and limit party contributions in the aggregate, so that multiple committees of a political party are treated as a single committee for contribution-limit purposes (Id. at 17-18). As the media reported after the Acts passage, though the laws purported intent is to prevent people and interest groups from trying to buy influence in state government . . . the . . . law has a loophole: It only caps what political parties and the four legislative leaders can give to candidates in primaries but not in general elections, leading to criticism that it simply concentrates power in the hands of a few well-entrenched legislative leaders. Jim Suhr, New Illinois laws include ethics, stop-light reforms, State Journal Register, Dec. 30, 2009. (Plf.s Exh. 13.) Based on this history, Defendants argument that the legislature may eventually find that it would serve anticorruption interests to place permanent contribution limitations on political parties is as preposterous as it is improbable. (Defs. Resp. 8) (emphasis added). B. Colorado II

Federal Election Commn v. Colorado Republican Federal Campaign Committee, 533 U.S. 431, 444-45, 465 (2001) (Colorado II) addressed the issues of whether a political party is in a different position from other political speakers, such as individuals and PACs, with respect to direct expenditures and whether a parties would raise the same risk of corruption posed by other coordinated spenders. While these issues were considered in the context of a First Amendment challenge to party contribution limits, in upholding the limits, the Court found that there was no significant functional difference between a partys coordinated expenditure and a direct party contribution to [a] candidate, and that both had the power to corrupt. Id. at 464.

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Here, the history of Illinois politics speaks to this corruption, as shown in the legislative history of the Act (Plf.s Exhs. 9, 12), the IRCs recommendations that urged comprehensive reform, including limits on what political parties may give and receive (Plf.s Exh. 11 at 1, 17-18), and media reports covering the issue (Plf.s Exh. 13). Thus, both Colorado II and the facts in Illinois show that parties and nonparties are similarly situated and should be treated as such. Defendants cite several cases in an attempt to justify the Acts discrimination in favor of political parties, arguing that where political parties are treated differently from others, the Court should defer to the legislatures conclusion that special interest groups like Illinois Liberty PAC present a greater need to be regulated via contribution limits while political parties are sufficiently regulated by other means. (Defs. Resp. 14, citing McConnell v. Fed. Election Comm'n, 540 U.S. 93, 187-88 (2003), overruled by Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010); Cal. Med. Assn v. F.E.C., 453 U.S. 182 (1981); Bread Political Action Comm. v. Fed. Election Comm'n, 635 F.2d 621, 630 (7th Cir. 1980) rev'd, 455 U.S. 577 (1982).) However, each of these cases turned on its facts, which Defendants failed to explain. For example, in Bread PAC, trade associations challenged a federal law that treated trade associations differently from corporations and unions. But there the Court found the plaintiffs argument was premised largely on a misreading of the statute, and that the somewhat dissimilar treatment follow[ed] from the rather obvious facts that each of the different groups has a different structure and a different kind of constituency and that each requires somewhat different regulation to curb abuses the Act was intended to halt. Bread PAC, 635 F.3d at 630631. California Medical and McConnell are also distinguishable because in each case there were various provisions that gave the different political speakers relative advantages and

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disadvantages; neither involved a scheme that simply exempted parties from the limits that nonparty speakers must face. In California Medical, the Court rejected an equal protection claim against a scheme that placed contribution limits on individuals and unincorporated associations but not on corporations and unions, because the Act as a whole, impose[d] far fewer restrictions on [the plaintiffs] than it [did] on corporations and unions. 453 U.S. at 200. Likewise, in McConnell the plaintiffs argued that the law violates the equal protection component of the Due Process Clause of the Fifth Amendment because it discriminated against political parties in favor of special interest groups. But as in California Medical, the Court found that while the federal law imposed numerous restrictions on the fundraising abilities of political parties versus interest groups who remained free to raise soft money, the law also favored political parties in many ways. McConnell, 540 U.S. at 186-88. Here, in contrast with California Medical and McConnell, it cannot be said that the Illinois Act places fewer restrictions on Plaintiff and other nonparties; to the contrary, all the restrictions are on Plaintiff and nonparties, while few to none are placed on political parties. In response to Plaintiffs equal protection argument, Defendants offer only unsupported, conclusory arguments, citing a single quote from a legislator (Defs. Resp. 12), and never addressing the evidence in Plaintiffs Motion. (See Plf.s Exhs. 3-6; 9, 11-12).8 Accordingly, Defendants failed to support their burden to show that the Acts discrimination against nonparty

Defendants cite to reporting, records retention and disclosure requirements that apply to parties and PACs and point out that political parties are limited in the number of political committees they can form to support their argument that parties are treated differently because they are sufficiently regulated by other means. (Defs. Resp. 14 n. 4.) It defies credulity to claim that political parties in Illinois are regulated in any way, or in any meaningful way, given the Acts special party exemptions and its provisions that lift caps when self-funded candidates and independent expenditures reach certain amounts in a race, but not when political parties reach those amounts, as the evidence shows they do. (Plf.s Exhs. 3-6.)

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political speakers is narrowly tailored (or clearly drawn), to support a compelling (or sufficiently important) state interest. IV. Standing Defendants do not dispute that Plaintiff has standing to challenge the Acts contribution limits on PACs; however, they claim Plaintiff lacks standing to facially challenge the entire statutory scheme. (Defs. Resp. 4-5.) But Plaintiffs First Amendment claim challenges the entirety of the contribution limit scheme on underinclusiveness grounds. (Plf.s Mem. 12-13.) Therefore, if the Court finds the Act underinclusive, it should strike all the limits; otherwise, the Act would become even more underinclusive and irrational. In the alternative, the Court should enjoin all limits because the PAC limits are not severable from the remainder of the Act. Whether invalid provisions in a state law can be severed from the whole to preserve the rest is a question of state law, Burlington N. & Santa Fe Ry. Co. v. Doyle, 186 F.3d 790, 804 (7th Cir. 1999), and under Illinois law, a provision is not severable from the remainder of a statute if the valid and invalid provisions of the Act are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not pass the residue independently. People ex rel. Chicago Bar Assn v. State Bd. of Elections, 558 N.E.2d 89, 98 (Ill. 1990).9 As in Randall v. Sorrell where the Supreme Court refused to sever an unconstitutional limit on political party contributions from the rest of a contribution-limit scheme striking the

The presence of a severability clause in a statute is not conclusive as to the legislatures intent, and Illinois general severability statute, 5 ILCS 70/1.31, carries less weight in ascertaining legislative intent than specific severability clauses. Chicago Bar Assn, 558 N.E. 2d at 98.
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limits on only one type of speaker would leave gaping loopholes in the Act, and there is no way for the Court to foresee which of many different possible ways the legislature might amend the Act in the absence of those limits. 548 U.S. 230, 262 (2006). Any suggestion that the legislature would have passed or would maintain the exact same Act in the absence of the PAC limits is implausible. Accordingly, if the limits on PACs are struck down, all of the Acts limits should be struck down as well. Finally, Defendants argue that any injunction must be limited pursuant to Carroll v. President & Commrs of Princess Anne, 393 U.S. 175, 183 (1968). However, Carroll addressed injunctions that limit First Amendment rights, not ones that protect rights. 393 U.S. at 183-84 (reversing temporary restraining order against political rally). Defendants citation of Brockett v. Spokane Arcades, Inc., also fails to support its argument because there the Court simply held that facial invalidation of a statute was improper because the statute had some constitutional applications. 472 U.S. 491, 502-06 (1985). Here, in contrast, the states entire contribution-limit scheme is unconstitutional. Striking the entire contribution-limit scheme may benefit nonparty political speakers who are not parties to this lawsuit, but that is irrelevant to the question of whether Illinois Liberty PAC has standing to challenge the entire scheme. V. Conclusion Wherefore, as set forth in herein and Plaintiffs Memorandum in Support of its Motion, Plaintiff respectfully requests that its Motion of Preliminary and/or Permanent Injunction be granted.

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DATED: AUGUST 21, 2012

Respectfully submitted,

By:

/s/ Diane S. 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

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CERTIFICATE OF SERVICE I, Diane S. Cohen, an attorney, hereby certify that the Plaintiffs Reply in Further Support of its Motion for Preliminary Injunction was filed on Tuesday August 21, 2012, through the Courts CM/ECF system. Parties of record may obtain a copy of the paper through the Courts CM/ECF system.

/s/ Diane S. Cohen

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