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First Amendment Victory Over Ban on Political Contributions from Medical Marijuana Businesses in Illinois

The state of Illinois enacted in 2013 a pretty blatantly unconstitutional law forbidding businesses engaged in (legal) medical marijuana sales or growing from contributing to political campaigns, in effect either directly or via a PAC (though only the latter was literally codified). But since candidates were also barred from accepting such contributions, the real legal effect was on direct contributions as well.

Two Libertarian Party candidates, Claire Ball and Scott Schluter, sued over this, with the help of the Pillar of Law Institute and the Liberty Justice Center. I reported on the suit in the case of Ball v. Madigan back in June.

This week, Ball and Schluter won a victory in U.S. District Court for the Northern District of Illinois, eastern division, in a request for summary judgment for them and against Illinois. (“Madigan” is Illinois Attorney General Lisa Madigan.)

Quoting from the decision from Judge John Z. Lee, which considers the notion whether this law must face “strict scrutiny” as a possible First Amendment violation based on content, or the looser “intermediate scrutiny” applying to most campaign finance law:

By singling out medical cannabis organizations, § 9-45 [the law being challenged] appears to reflect precisely…a content or viewpoint preference. Although Buckley and its progeny permit the government to regulate campaign contributions to some extent, surely the First Amendment does not give the government free rein to selectively impose contribution restrictions in a manner that discriminates based on content or viewpoint…..

§ 9-45 fails to pass constitutional muster even under Buckley‘s less rigorous intermediate standard. The Court therefore need not decide whether the statute would survive the more demanding standard of strict scrutiny, if that standard were to apply…..

Since the only reasonable government purpose Judge Lee would accept, based on precedent, for these restrictions is “preventing quid pro quo corruption or its appearance,” he finds Illinois failed to:

point to any legislative findings raising concerns about corruption or the appearance of corruption in the medical cannabis industry. Nor do they point to any instances of actual corruption involving any medical cannabis cultivation center or dispensary. Rather, they rely solely upon Illinois’s general history of political corruption scandals….

Still, the Judge is lenient on Illinois so far, writing that that thin evidence:

nevertheless substantiate[s] Defendants’ claim that the media and the public have perceived a risk of corruption relating to the medical cannabis pilot program. This is all the more true given that cannabis distribution and use were legally banned in Illinois until the passage of the Medical Cannabis Act. Although thin, such evidence is sufficient under governing law to establish an important government interest for purpose of this analysis.

But that’s not enough for Illinois to win:

they must further demonstrate that § 9-45 is “closely drawn” to this important government interest. For the reasons that follow, they fall short of doing so…..

Several features of § 9-45 render it plainly disproportional to the government’s interest in preventing quid pro quo corruption or its appearance. First, § 9-45 is a disproportionate measure in that it imposes an outright ban on contributions, rather than a mere dollar limit on contribution amounts….

Defendants in this case have failed to explain why a flat prohibition is proportionate to the government’s interest in avoiding the risk of actual or perceived corruption that arises when donors from the medical cannabis industry make monetary contributions to political campaigns. They assert that a wholesale ban is appropriate on the ground that medical cannabis cultivation centers and dispensaries “reap profits from the industry and require State licensure to operate” and therefore “pose the greatest risk of corruption.”

But this bald assertion is little more than conjecture; Defendants offer no support for their claim that medical cannabis cultivation centers and dispensaries in fact pose a greater risk of corruption than other potential donors….

In addition, it bears noting that, without § 9-45, contributions from medical cannabis cultivation centers and dispensaries would still be subject to generally applicable contribution limits that the Illinois General Assembly approved in 2009…. Under these limits, a candidate political committee may not accept contributions over $5,000 from any individual or over $10,000 from any corporation, labor organization, or association, with adjustments for inflation….

Defendants have not explained why these broadly applicable contribution limits are insufficient to prevent the risk of corruption in the medical cannabis industry…

Moreover, § 9-45 is a poorly tailored means of promoting the government’s interest in preventing quid pro quo corruption or its appearance because Defendants have offered no legitimate basis for singling out medical cannabis cultivation centers and dispensaries from other potential donors who also “reap profits” and “require State licensure to operate.”

Judge Lee points out that past precedent Illinois tried to rely on regarding contribution restrictions on the gambling industry were distinct since in those cases actual real records of gambling-financed corruption existed.

For all those reasons, Judge Lee “concludes that § 9-45 places a significant and unjustifiable burden on the rights to freedom of speech and freedom of association. Section 9-45 is therefore invalid under the First Amendment.”

A nice victory for free speech and expression in the growing tangled nexus between rights regarding marijuana and existing constitutional rights.

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