In arguing Wednesday for the dismissal of $9.8 million in fines and forfeitures brought by the Illinois State Board of Elections against State Senate President Don Harmon, veteran election lawyer Michael Kasper worked to offer a tutorial on why words matter when writing a statute.
Harmon, an Oak Park resident, did not attend the hearing which was held in downtown Chicago. Barbara Goodman, an attorney from Northbrook, presided at the hearing. She said she will take Kasper’s arguments under advisement and then forward her findings to ISBE General Counsel Marni M. Malowitz.
While no date certain was given, the hearing officer’s report could be released prior to the next ISBE board meeting on Sept. 16.
Kasper, representing Harmon, argued both that the ISBE “misinterpreted” the law as written and that the law as written is ambiguous.
The ISBE did not make any further formal arguments during the hearing, although Goodman, the hearing officer, had the board’s previously filed brief on her desk.
Kasper noted that “about 35 pages of briefs” had been filed “on the interpretation of a relatively small amount of words.” Among those subject words were “duration,” as well as “candidate” and the distinction in meaning between “election” and “election cycle.”
Kasper basically said the law Harmon co-sponsored years ago was at best ambiguous on the matter at issue, saying, “I don’t think it can reasonably be argued that this statute is not ambiguous. I mean, there’s all kinds of permutations about that.”
The statute’s ambiguity, Kasper said, arose from a conflict between two clauses: section 9-8.5(b) and section 9-8.5(h).
Section 9-8.5(b), he said, “imposes contribution limits, speaks in terms of ‘election cycles.’”
Section 9-8.5(h), Kasper said, “which addresses the removal of contribution limitations, speaks not in terms of election cycles, but in terms of ‘elections’ which the whole conflict here is about the fact that they’re not necessarily the same thing.”
The issue, Kasper said, is “What is the effect of a candidate self-funding their election. The question is what is the duration.” The answer, he said, involved both time and money.
“There’s a financial limit that gets removed by self-funding,” Kasper said. “And there’s a time limit – election cycle. So there’s two limits according to the (ISBE’s) analysis of subsection (b), (and) the self-funding removes only one of those limits, the financial one, but not the time one.”
“But subsection (h) says ‘any contribution limits,’ if there’s both a financial and a time limitation. And section (h) removes any limitations,” Kasper said. “Why does (the time element) not get removed too? That would be entirely consistent with all candidates for the office.”
“So it seems to me the operative words…the operative clause here, is … 9-8.5(h): ‘If a public official contributes during the 12 months prior to an election an aggregate amount of more than $100,000 all candidates for that office shall be permitted to accept contributions in excess of any contribution limits imposed by subsection (b).”
The operative phrase, Kasper said, “is ‘candidates for that office.’” He argued that people do not run for “election cycle,” but for “election,” saying, “You can only be a candidate for office. Once you become a candidate for an office, you remain a candidate until the election for that office.”
Kasper also said that the ISBE’s interpretation would effectively treat State House candidates and State Senate candidates differently, due to the inherent differences in their elections cycles; representatives are up for election every two years, while senators are up for election twice for four year terms and once for a two year term, every decade.
For House candidates, Kasper said, “it has the effect of removing the cap for the primary. If they win the primary, the caps stay off for the general. So the whole shooting match the caps are off.”
If the senator self-funds “on Jan.13th in the middle of a two-year term,” (it’s) exactly the same outcome. Caps are off through the election, primary and general,” Kasper said.
But if a senator “self-funds on Jan. 13th of a four-year term – oh, no – according to the board, different analysis, different rule,” Kasper said. “Caps are off for half the election, for the first half, but not the second half. That completely defeats the purpose of treating the legislative candidates the same.
Harmon, who was not present at Wednesday’s hearing, took several actions in December 2022 and January 2023 that led to the current state of affairs.
In December 2022 his campaign paid him back for 214 incidental campaign expenses Harmon had incurred over the course of 2 decades, ranging from a few dollars to several thousand dollars. Rather than be reimbursed, Harmon had opted to have the expenses reported to the ISBE as small loans, which were listed as campaign debt.
On Dec. 30, 2022, Harmon received repayments from his campaign totaling $295,653.43; they were reported on the campaign committee’s quarterly report.
Harmon then sent a large part of that money back to his campaign on Jan. 13, 2023, as individual contributions, triggering the funding limitation suspension.
“He filed a contribution above the limit, slightly above the minimum threshold to remove the contribution limits, we all agree with that,” Kasper said.
In fact, Harmon contributed $101,329.51 of the returned money to Friends of Don Harmon. On that same day, according to ISBE records, he gave another $66,822.92 as an itemized contribution and sent a “Notification of Self-Funding Letter” to the ISBE, listing the total $168,152.43 in self-contributed funds, and listing the election date as “Nov. 5, 2024.”
The effect of the self-funding move was nearly immediate. On Feb. 17, the Chicago Land Operators Joint Labor Management PAC contributed $262,000. A month later, it sent another $200,000 to Harmon’s campaign. Between mid-February and late December 2023, in addition to millions of dollars in smaller contributions, Harmon’s campaign fund received $3.9 million from six large unions and two healthcare organizations. That included $1,518,000 from the Chicago Land Operators Joint Labor Management PAC and $1,105,000 from the Laborers’ International Union of North America (LIUNA) Chicago Laborers’ District Council PAC.
Those specific contributions eventually led to the finding by the ISBE that the Harmon campaign had raised funds above the allowable contribution limits.
Toward the end of Wednesday’s hearing, Goodman queried Kasper, “I think that it’s very clear to me that the issue is – the issue is when is the limitation, you know, well, how long does (the campaign contribution limit) remain lifted essentially, right?”
Kasper replied, “Correct. Correct. Right.” Goodman then asked him to give the dates he believed were applicable.
“March 17, 2026,” Kasper replied. “Because that is the election for which the self-funded candidate (Harmon) is a candidate.” He added that “9-8.5(h) says ‘all candidates for that office.’ The first opportunity someone can be a candidate for that office is March 17, 2026.”