Campaign contributions from out-of-staters and so-called dark money groups will be banned in Illinois judicial campaigns beginning in January under legislation Gov. JB Pritzker signed into law Monday.
Several states have enacted laws forcing disclosure of funders to nonprofits — including social welfare groups [501(c)4s], labor unions [501(c)5s] and industry trade groups [501(c)6s], 501(c)4s, 5s and 6’s — whose political spending is referred to as “dark money,” since those groups aren’t required to make their donors public.
But Illinois’ new law takes a different tact, banning judicial candidates from taking campaign contributions from any entity that doesn’t disclose its funders.
The measure’s sponsor, State Rep. Katie Stuart (D-Edwardsville), said the ban is something that’s been in the works for a while, especially as leaders in the legal community and scholars become progressively worried about undue influence in judicial elections, especially appellate and supreme court justices whose terms last a decade.
“The danger of dark money I don’t think can be [over]stated,” Stuart said Monday. “[The judiciary is] where the legislation that we [legislators] pass ultimately sometimes gets tested. And the thought that there’s dark money influencing someone, again, who’s a sitting judge for 10 years — that’s quite terrifying.”
The provision barring judicial candidates from accepting political funds from certain nonprofits was tucked into the larger elections-focused measure Democrats passed through the General Assembly last month. The new law also includes the ability for voters to change their voter registration gender identification to non-binary after the 2022 election cycle and also establishes a task force to examine Illinois’ election laws to recommend accessibility improvement for voters with disabilities.
The law also bans out-of-state contributions to judicial candidates and clarifies already-illegal campaign contributions in Illinois, including money from anonymous sources.
But making Illinois the first state to outright ban certain political contributions to judicial candidates is the biggest change contained in the law, which comes a year after an Illinois Supreme Court justice first elected as a Democrat became the first sitting high court member in state history to lose his retention bid — an expensive race fueled in part by dark money.
Republicans voted against Stuart’s legislation last month, with several members arguing during the House debate that the majority party was making another adjustment in state elections law to benefit their party.
“This is another effort for the majority [party] to change the rules of the game because they don’t like the outcome,” State Rep. Ryan Spain (R-Peoria) said before voting no on the bill. “And the voters of the state of Illinois are noticing that the policies and practices and elected officials that they’ve put in power have not served them well.”
Spain also referenced another change Democrats made to Illinois’ judiciary earlier this year when the majority party redrew Illinois’ five Supreme Court judicial districts for the first time in nearly 60 years while engaging in the legislature’s usual once-per-decade redistricting of political boundaries for legislative and congressional districts.
Former Justice Thomas Kilbride’s loss in his second retention race last November sets up a fight for partisan control of the court in 2022, as newcomers vie for his former third district seat on the court and three other high court members are up for election.
Dark money groups can raise unlimited funds from donors and spend unlimited amounts of money on independent expenditures: political communication — namely TV ads or other paid media — advocating for the election of a candidate or their defeat. The Judicial Fairness Project, for example, is the 501(c)4 that pushed for Kilbride’s ouster from state Illinois Supreme Court. That group gave $200,000 to its related political action committee, which in turn attracted another $350,000 from another dark money group called the Illinois Opportunity Project.
But the largest contributions to the anti-Kilbride PAC, Citizens for Judicial Fairness, were from donors who didn’t mind being named: wealthy conservative political funders Ken Griffin and Richard Uihlein, who gave $4.5 million and $1 million, respectively.
Dark money groups can also give to individual candidates, though they’re limited to $59,000 in a single election cycle. But Illinois’ new law will bar judicial candidates from accepting money from nonprofits that don’t disclose their donors — a voluntary move some groups have done in the past, including Pritzker’s Think Big Illinois 501(c)4, which funded the governor’s failed bid for a graduated income tax on the Nov. 2020 ballot. Other dark money groups worked to defeat the measure.
Dark money spending on elections — particularly from conservative 501(c)4 groups — exploded after the landmark 2010 U.S. Supreme court decision in Citizens United, which found a federal campaign finance law limiting independent expenditures violated the First Amendment. According to analysis by campaign finance watchdog Open Secrets, however, that dark money spending in federal elections has calmed considerably since the post-Citizens United spike in 2012.
But that federal spending analysis doesn’t take into account any judicial elections, as judges on the federal level are appointed, unlike in the 22 states that have partisan and nonpartisan judicial elections for at least some court systems. And experts have expressed worry about the increasing involvement of dark money in judicial elections, particularly for state supreme courts.
In her 2013 review of 2,345 decisions from all 50 states’ supreme courts in business-related cases, Emory University School of Law Vice Dean Joanna Shepherd analyzed the high court opinions alongside more than 175,000 campaign contributions, which revealed a growing relationship between business interests’ campaign contributions and the decisions of state supreme court justices.
“The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court,” Shepherd wrote.
The trend worries Stuart.
“I can’t pass legislation singlehandedly,” she said. “I have to earn the votes…of my fellow legislators, where judge is one person making a ruling. So…just the thought of someone being able to be so easily persuaded is scary.”
Republicans voiced concern that Stuart’s legislation is unconstitutional in the face of Citizens United, but Stuart cited three cases in which the U.S. Supreme Court held that judicial candidates should be regarded differently than other politicians and otherwise found that excessive judicial campaign contributions could violate due process in a case involving the donor down the line.
Two of those cases were decided before the 2010 ruling in Citizens United, but in 2015, the court upheld a Florida law prohibiting judicial candidates from directly soliciting campaign contributions — a prohibition shared by Illinois and 28 other states, aimed at keeping the judiciary impartial.
“Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries,” Chief Justice John Roberts wrote for the majority. “When the State adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.”
Asked if she expected Illinois’ new ban on dark money in judicial campaigns to invite a lawsuit challenging it, Stuart said she couldn’t predict the future.
