(This article was published first at Illinois Policy Institute).
Illinois Supreme Court Justice Thomas Kilbride’s retention election is drawing attention for the amount of money being spent on the campaign. Kilbride’s campaign raised almost $2.3 million since July, the vast majority from labor unions and law firms. Citizens for Judicial Fairness, one of the main opponents of Kilbride’s retention, has received a little over $2.56 million, which jumped Oct. 9 as a result of a $2 million donation from Citadel CEO Ken Griffin.
Although Illinois House of Representatives Speaker Mike Madigan’s campaign committees have raised over $25 million this year as of mid-September, he has yet to make a splash in Kilbride’s retention race. But the previous time Kilbride was up for retention, the Democratic Party of Illinois campaign committee, which is controlled by Madigan, contributed nearly $1.48 million – more than half of all the contributions Kilbride received that year.
One of the reasons Madigan has been able to hold onto power for most of the past four decades is through the vast amount of campaign funds he controls. He’s chairman of Friends of Michael J. Madigan, the 13th Ward Democratic Organization and the Democratic Majority.
But most importantly, Madigan is the chairman of the Democratic Party of Illinois and controls its campaign spending. As a legislative leader who is also a state party chair, Madigan holds extraordinary power. In Illinois, that gives him the ability to direct large campaign contributions to his preferred candidates in general election campaigns, a privilege available to political party committees.
While these committees allow Madigan to steer campaign contributions to his favored candidates for the General Assembly, that power doesn’t stop at the Statehouse.
Madigan’s Democratic Party of Illinois campaign committee has contributed more than $2 million to Kilbride’s Supreme Court election committee since it was formed in 2000. Most of that was spent on his 2010 retention, where Madigan provided $1.48 million of the $2.7 million Kilbride received in that year. Notably, Kilbride appears to be the only Supreme Court justice to whom Madigan has made contributions since at least 2005, according to campaign disclosure records from the Illinois State Board of Elections.
Kilbride has ruled on multiple cases that would be of interest to Madigan since then.
Kilbride penned the majority opinion in Hooker v. Illinois State Board of Elections, which struck the independent maps initiative from the ballot in 2016. Madigan rose to the speaker’s office thanks in large part to his mapmaking skill in favoring fellow Democrats in Illinois’ 1981 legislative redistricting.
The 2016 ballot initiative would have taken legislative redistricting out of Madigan’s hands and entrusted it to an independent redistricting commission, eliminating the General Assembly’s role in drawing its own legislative districts.
Kilbride has also consistently sided against pension reform, even joining an opinion which determined that a teachers union lobbyist could apply hours worked during a 10-year period as a lobbyist for the Illinois Federation of Teachers toward a pension from the Teachers’ Retirement System because he spent a single day in the classroom as a substitute teacher.
And while Madigan at one point supported pension reform, he bears significant responsibility for many of the policies and laws that created Illinois’ broken pension system, and has consistently opposed reform since 2013. The chief defenders of the pension status quo, Illinois public employee unions, have made considerable contributions to the speaker, and to Kilbride’s campaign. The speaker’s House Rules Committee in both 2019 and 2020 stalled a proposed constitutional amendment, preventing it from being debated or voted on, that would clear the way for reforms similar to those he had once supported. Madigan stands to benefit personally from the pension status quo.
Illinois judges are bound by rules of ethics, and there may be due process concerns when there is “significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent,” according to the opinion of the United States Supreme Court in Caperton v. A.T. Massey Coal Co.
Additionally, judicial candidate guidelines advise that “[i]f a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer, the judge should consider whether recusal would be appropriate.”
These rules do not cover donors who are not tied to litigation, however. And if a justice recused himself or herself from any case that had an impact on the interests of the speaker of the House, it’s likely that justice would be absent from a high percentage of cases. But Madigan acting as chair of the entire Illinois Democratic Party, with its ability to make unlimited contributions to judicial candidates, makes for unsavory optics. As chair of the Democratic Party, Madigan’s role is to help get Democrats elected, and that includes judges. But as speaker of the Illinois House, it is more than likely that his agenda, his exercise of power, and in the case of an issue such as term limits, the loss of his seat could come before the courts.
When a state chooses its judges by elections and retention votes and forces judges to become political campaigners, the appearance of influence is difficult to get around. For this reason, some recommend getting away from the judicial election model.
But barring a constitutional amendment to change the way Illinois chooses its judges, voters should go to the polls fully informed about who has an interest in judicial candidates before they cast their ballots. On this count, Madigan and Kilbride have a history.