Illinois moves to prohibit ‘dark money’ in judicial races, but it’s unclear what effect that will have on state’s free-spending campaigns

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With the balance of power on the Illinois Supreme Court at stake in next year’s election, Democrats who control Springfield took steps this fall aimed at curbing the influence of outside money in a state that holds the record for the nation’s most expensive judicial race.

Acting after Republican donors and business interests made history in 2020 by bankrolling the successful campaign to unseat Democratic Supreme Court Justice Thomas Kilbride, Democratic Gov. J.B. Pritzker signed a measure last month that bans judicial candidates from receiving campaign cash from out-of-state contributors and groups that don’t disclose their donors.

The Democratic-controlled Legislature this spring pushed through a new map of the state’s five judicial districts over GOP objections. That also was seen as a response to Kilbride’s ouster — the first time voters have unseated a judge on the state Supreme Court since retention elections were adopted in 1964.

The seven-member high court has a 4-3 Democratic majority, giving the party dominance over all three branches of state government. But two seats held by justices appointed to fill vacancies, Republican Michael Burke and Democrat Robert Carter, are up for election next year. In addition, another justice from each party, Republican Rita Garman and Democrat Mary Jane Theis, are up for once-a-decade retention votes.

Banning money from undisclosed donors could be a tactical advantage for Democrats because, by and large, their judicial candidates tend to draw their support from labor unions and civil attorneys, whereas there has been more spending on the right by nonprofit organizations that aren’t required to disclose their donors.

A total of more than $11.7 million was raised by Kilbride and the main groups opposing his retention. That could be a harbinger of even more big spending to come next year, and one of the state’s leading campaign finance experts says the new law likely will do little to stem the tide of cash from powerful interests trying to influence who sits on the state’s highest court.

“This is basically feel-good, virtue signaling kind of legislation,” said Kent Redfield, an emeritus professor of political science at the University of Illinois at Springfield who helped craft previous changes to the state’s campaign finance laws.

Because the law applies only to individual candidates’ campaign funds, there’s nothing stopping so-called independent expenditure committees — which can raise and spend unlimited sums as long as they don’t coordinate with candidates or their campaigns — from taking money from outside Illinois or from groups that don’t identify their contributors.

What’s more, the new law raises constitutional and logistical questions about what steps the state can take to restrict fundraising by judicial candidates in the name of preserving the independence and impartiality of the courts, Redfield said.

The attempt to prohibit out-of-state money in particular raises potential freedom of speech and due process concerns, he said. And even if the prohibitions were to survive possible legal challenges, the challenge of trying to define and track contributions from outside of Illinois and from “dark money” groups would remain.

“As a practical matter, the implementation and enforcement of this is very, very difficult,” Redfield said.

Those chores will fall to the Illinois State Board of Elections, which will review candidates’ campaign finance disclosures for potential violations of the new restrictions and adjudicate complaints alleging violations through its regular hearing process, spokesman Matt Dietrich said.

The board also is developing rules to clarify the definition of out-of-state contributions and other aspects of the law, Dietrich said, though those rules won’t be finalized for “several months.”

State Rep. Katie Stuart, the Edwardsville Democrat who sponsored the measure, said during the debate on the proposal this fall that “trying to avoid dark money in elections, I think is something that we can all get behind.”

“The change would stop out-of-state and untraceable money from finding its way into our judicial races to maintain the integrity of those judicial elections,” Stuart said.

Republicans, though, saw the legislation as an attempt by Democrats to strengthen their grip on the court after a surprise defeat in the Kilbride retention campaign.

“This is another effort for the majority to change the rules of the game because they don’t like the outcome,” GOP Rep. Ryan Spainof Peoria said on the House floor.

But in the case of last year’s retention fight, it appears the law would have had a fairly limited impact on the amount of money raised and spent.

Of the nearly $5.6 million Kilbride’s campaign raised in 2020, about $429,000 was from out-of-state contributors. State campaign finance records don’t show any direct contributions from groups with anonymous donors. The bulk of his contributions, $4.6 million, came from labor groups and the legal community.

The main group opposing Kilbride’s retention, an independent expenditure committee called Citizens for Judicial Fairness, received $77,500 from outside Illinois and $550,000 from groups with anonymous donors — $350,000 from the conservative Illinois Opportunity Project and $200,000 from a group called the Judicial Fairness Project that has ties to the state GOP.

The vast majority of the nearly $6.2 million Citizens for Judicial Fairness raised came from two sources: $4.5 million from billionaire Citadel founder Ken Griffin and another $1 million from packaging magnate and conservative megadonor Richard Uihlein.

And because that money flowed through an independent expenditure committee, the new law won’t prevent Citizens for Judicial Fairness or other similar groups from attempting a repeat performance next year.

Jim Nowlan, a former Republican state lawmaker and chairman of Citizens for Judicial Fairness, said the group expects to be active advocating for GOP candidates for Supreme Court seats in the newly drawn 2nd and 3rd Judicial Districts, the seats currently held by Republican Burke and Democrat Carter.

In addition to spending $4.3 million opposing Kilbride’s retention, Nowlan’s group spent $1.5 million last year opposing Democratic Appellate Judge Judy Cates in the race for the Supreme Court seat for southern Illinois’ 5th Judicial District. Cates lost to Republican Appellate Judge David Overstreet by a margin of 63% to 37%.

“We want to finish the job of ending the control of the Democratic Party of Cook County over the Illinois Supreme Court, which has been unbroken for 60 years and which has resulted in decisions that I think are abuses of democracy,” Nowlan said, noting the Democratic majority’s 2016 decision to block a citizen initiative on redistricting from appearing on the ballot.

“I don’t think Democrats’ new law will affect our capacity to wage really vigorous campaigns,” he said.

The new 2nd District comprises DeKalb, Kendall, Kane, Lake and McHenry counties, with DuPage County moving to a more compact 3rd District, where Kilbride lost his retention bid. Democrats say the new map is meant to better balance population among the districts, but Republicans see it as a move by the party to maintain their court majority.

Candidates for the June 28 primaries can begin circulating nomination petitions Jan. 13.

Despite the new law’s limitations, experts say lawmakers are right to be concerned about the influence of untraceable money in judicial elections, particularly in Illinois, which has been a national leader in high-price judicial races over the past two decades.

“What we expect in judicial consideration of issues brought in lawsuits is a fair and evenhanded assessment of evidence presented, the arguments made and a decision that reflects the presentation by the parties and nothing outside of that,” said Stephan Landsman, an emeritus professor of law at DePaul University.

Questions about the possible undue influence of money have swirled around the state Supreme Court since the election of Justice Lloyd Karmeier in 2004 in the 5th Judicial District.

In 2018, State Farm agreed to pay $250 million to settle a federal racketeering lawsuit that alleged the Bloomington-based insurance giant funneled money into Karmeier’s campaign in an effort to overturn a $1 billion judgment against the company that had been upheld in a state appeals court.

State Farm settled “simply to bring an end to the entire litigation,” according a news release at the time. But a forensic accountant expert hired by the plaintiffs in the case said in court documents that the company had secretly directed $3.5 million to Karmeier’s campaign through intermediaries.

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The information uncovered in the State Farm racketeering case suggests the law doesn’t have to create an “absolute barrier” to dark money being spent in judicial races to be an effective tool, Landsman said.

“If you have a standard and if there is good circumstantial evidence that standard has been violated, it opens the door to serious judicial inquiry about fairness,” he said. “That’s costly. It’s only going to happen in very high-stakes litigation. But it is the way you send a message. It is the way you create deterrence.”

Karmeier, who resisted calls to recuse himself from the State Farm cases and narrowly won retention in 2014 amid an opposition campaign funded largely by trial lawyers, retired last year.

His 2004 race against Gordon Maag, which totaled more than $15 million in spending, remains the most expensive election for a judicial seat in U.S. history, according to the Brennan Center for Justice at New York University Law School.

Last year’s vote on whether Kilbride should remain on the bench also was the most expensive retention election on record.

Given that history, it makes sense that lawmakers in Illinois — one of the roughly half-dozen states that have partisan elections for high court judges — would be interested in trying to limit the influence of money in judicial races, said Douglas Keith, counsel for the Brennan Center’s democracy program.

While he isn’t aware of other states having attempted an outright ban on dark money contributions to judicial candidates, Keith said some recent court decisions have cast doubt on a state’s ability to limit campaign contributions from outside its borders.

For example, a federal appeals court earlier this year struck down a prohibition on candidates in Alaska accepting more than $3,000 in out-of-state contributions in a year.

But the U.S. Supreme Court appears to have left some room for states to treat those seeking a seat on the bench differently than candidates for other offices.

In 2015, the court upheld a Florida law prohibiting judges and judicial candidates from soliciting campaign contributions.

When dealing with campaign finance laws, the court generally weighs First Amendment rights against a state’s interest in combating corruption, Keith said.

In the Florida case, “the court recognized that states also have a very important interest in maintaining the public’s confidence in judicial independence,” he said.