Jacob H. Huebert
Jacob H. Huebert
Eric Sweatt, partner and manager of Salveo Health and Wellness, a licensed medical cannabis dispensary in downstate Canton assists one of the shop’s customers in October 2015. A federal judge last week ruled that prohibitions on political activity from the cannabis industry violate the First Amendment. 
Eric Sweatt, partner and manager of Salveo Health and Wellness, a licensed medical cannabis dispensary in downstate Canton assists one of the shop’s customers in October 2015. A federal judge last week ruled that prohibitions on political activity from the cannabis industry violate the First Amendment.  — AP Photo/Seth Perlman, File

To a federal judge, the state’s ban on political donations by the medical-marijuana industry to others was fundamentally different from similar limits imposed on lobbying, liquor and gambling interests.

It was “inexplicably” narrow, unlike lobbyist and contractor bans that were aimed at deterring corruption more generally, the judge wrote.

And it came about much more recently than the liquor-industry bans, after the U.S. Supreme Court loosened campaign finance laws in 2010 and 2014.

Further, it was not supported by a track record of previous corruption cases like the gaming bans.

Those differences helped lead U.S. District Judge John Z. Lee to decide part of a 2013 Illinois medical-marijuana law that banned campaign contributions from cannabis cultivation centers and dispensaries violated the First Amendment.

In a 22-page decision issued late last week, Lee wrote that Section 9-45 of the Illinois Election Code, which prohibited cultivation centers and dispensaries from giving any amount to political candidates, was not “closely drawn” to advance the government’s interest in preventing quid pro quo corruption or its appearance.

He called the law “plainly disproportional” to that interest, questioning why an outright ban was needed instead of a dollar limit on contributions. He wrote that the notion the centers and dispensaries pose a great risk for corruption is “little more than conjecture.”

And he wrote that the outright ban on top of the $10,000 baseline limit for corporate donations to candidates was a “heavy-handed ‘prophylaxis-upon-prophylaxis’ approach.”

“Defendants have offered no justification for imposing an outright ban on contributions from medical cannabis cultivation centers and dispensaries when more moderate measures, such as dollar limits on contributions, are available,” Lee wrote.

“Nor have they explained why the risk of the appearance of corruption might be uniquely problematic in the medical cannabis industry, such that it could be justifiable for the government to target contribution restrictions at the medical cannabis industry alone.”

The lawsuit was filed by Libertarian political candidates Claire Ball and Scott Schluter in November 2015. The former ran for state comptroller last year. The latter ran for a spot in the state House of Representatives. Neither were successful in those endeavors.

But the court decision Friday gave them a political victory of sorts. The opinion noted they plan to run for office again and wish to solicit legal donations from the medical-marijuana industry.

Applying intermediate scrutiny to the ban, Lee wrote that it passed the first part of the test by promoting a “sufficiently important government interest” — though it perhaps didn’t pass by much. He wrote that the state cited “Illinois’ general history of political corruption scandals” as well as five news reports that questioned whether corruption would play a role in the fledgling cannabis industry.

Lee wrote that the evidence “leaves much to be desired” but that it did reflect a “plausible” belief that marijuana should get extra protection from undue influence.

But the law did not pass the second part of the test — that it was “closely drawn” to protect the government’s interest. In fact, the judge wrote it was “poorly tailored” because there was no apparent reason for singling out marijuana over other businesses. Courts have upheld bans on lobbyist donations, contractor donations and others, Lee wrote, citing the 4th U.S. Circuit Court of Appeals decision in the 2011 case of Preston v. Leake and the D.C. Circuit decision in the 2015 case of Wagner v. F.E.C.

But “[r]ather than restricting contributions from some broad category of entities that require state licensure or otherwise stand to gain financially from certain state action, [Section] 9-45 inexplicably targets a highly limited subset of those entities: medical cannabis cultivation centers and dispensaries,” he wrote. “The industry-specific focus of the statute’s scope belies [d]efendants’ contention that [Section] 9-45 is appropriately tailored to prevent the general risk of corruption involving regulated entities subject to licensure requirements.”

The state cited courts that upheld other states’ bans on donations from the casino and gaming interests specifically. But there was evidence in those cases that corruption was localized to that industry, Lee wrote, noting that several other states had recently prosecuted government officials for transgressions related to gaming.

“By contrast, [d]efendants in this case have offered no evidence of actual corruption, in Illinois or elsewhere, involving the medical cannabis industry,” the court wrote. “And although they point to five news reports as evidence of an appearance of corruption, these reports provide no reason to suspect that the appearance of corruption is a problem unique to the medical cannabis industry, rather than a problem afflicting highly regulated industries in general, so as to justify the targeted approach taken in [Section] 9-45.”

Finally, Lee rejected the state’s comparison to a 1976 case in which the Illinois Supreme Court upheld a ban on donations from liquor licensees, Schiller Park Colonial Inn Inc. v. Berz. He noted that in that case, lawyers defending the law successfully argued that it would stem corruption in a general way — by “preventing liquor licensees from gaining influence over legislators or other political figures” and “protecting liquor licensees from being pressured into making political contributions.”

Since then, the U.S. Supreme Court has lifted restrictions on campaign financing, making it tougher for contribution bans to survive by decreeing in Citizens United v. FEC in 2010 and McCutcheon v. FEC in 2014 that they must specifically prevent “quid pro quo” corruption.

Thus, “the Schiller defendants’ assertion of these interests is at odds with the United States Supreme Court’s more recent holdings that a contribution restriction may withstand a First Amendment challenge only if it promotes the government’s interest in preventing quid pro quo corruption or its appearance,” Lee wrote. “Accordingly, the [c]ourt does not find Schiller persuasive.”

The plaintiffs were represented by Jacob H. Huebert, senior attorney at the Liberty Justice Center.

Huebert this morning noted that the judge in the case considered applying strict scrutiny to the law, rather than intermediate scrutiny. He said he’s still hopeful that courts will do that going forward, including in another case his group is involved in that challenges overall contribution limits.

He called Lee’s opinion “a great decision.”

“The judge did the right thing in requiring the state to prove this rule was designed to serve some anti-corruption purpose in a closely drawn way,” Huebert said. “And of course the state couldn’t do that.”

A spokeswoman for the attorney general said the office is reviewing the decision.

Huebert said he believes the state’s arguments are weak enough that they should not appeal the case.

“I’m confident if they do appeal, the 7th Circuit would agree that the state can’t single out an arbitrary group and ban their participation in politics,” he said.

The case is Claire Ball, et al., v. Lisa Madigan, et al., 15-CV-10441.