Illinois Cannabis: Whatever Happened to Free Speech?

Why limit the free speech rights of cannabis businesses?
Can Illinois limit the free speech rights of cannabis businesses? (by Newtown Grafitti,

Illinois Libertarian candidates Claire Ball and Scott Schluter have filed a federal lawsuit challenging a provision of Illinois’ medical cannabis law that prohibits any medical cannabis cultivation center, dispensary, or any Political Action Committee they create, to “make a campaign contribution to any political committee established to promote the candidacy of a candidate or public official.”

Why does this ban even exist? Outside of the context of medical cannabis, governments often impose heavy restrictions–and sometimes prohibitions–on political contributions from individuals or companies who obtain merit-based licenses and lucrative government contracts. For example, a number of states prohibit casino licensees and their employees from making political contributions. The same is true for companies involved in procurements and government lobbyists.

Although the context differs, the rationale is the same: companies that stand to gain from preferential administrative actions (i.e., issuance of an exclusive license, or selection of their contract bid over another) have a much stronger incentive than most to influence the outcome of that decision making process. Limits on campaign contributions, the argument goes, can act as a buffer between government officials and the people who benefit from and try to influence their decisions.

This lawsuit challenges whether or not this buffer impermissibly restrains the candidates’ and Illinois medical cannabis licensees’ freedom of speech. It alleges that the prohibition is a form of viewpoint-based discrimination, which is subject to strict scrutiny. Under this test, the restriction survives only if it is narrowly tailored to achieve a compelling government interest.

The plaintiffs contend that Illinois’ contribution ban meets neither of these elements. The most frequently-invoked government interest justifying these bans is avoiding corruption or the appearance of corruption. The plaintiffs’ best chance for challenging these bans is in the often-criticized Citizens United v. Federal Election Commission case, which held, as a matter of law, that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” The gaming industry has been, historically speaking, rife with corruption, organized crime elements, and coercive political influence. It isn’t clear whether the cannabis industry rises nearly to the same level as the casino industry, at least one that justifies an outright ban on contributions.

One critical way in which this case is distinguishable from the landmark election cases is that the contributions ban is not generally applicable. The prohibition applies specifically and is completely voluntary by virtue of the cannabis license holder continuing to hold the license. The restrictions vanish the minute the the license is relinquished—the same isn’t true for individual campaign contribution limits. The restrictions also only apply to up to 82 licensed companies and their employees, and to the Political Action Committees and candidates to which they may give money. Nobody forced any of these entities to apply for licenses. To the contrary, they competed fiercely to obtain them, and presumably did so while well aware of the legal strings attached. In many respects, licensees have to waive constitutional rights to obtain operator licenses, such as their Fourth Amendment rights against warrantless searches and seizures. Is it unreasonable to require companies to waive their right to free speech, at least where their protected “speech” is actually a campaign contribution?

I doubt these prohibitions against cannabis donations will withstand constitutional scrutiny. There is no reason, let alone a compelling one, that justifies excluding cannabis businesses from the political process. If anything, given how obviously ridiculous our country’s cannabis laws are, cannabis businesses’ participation in politics is even more crucial. Could you imagine if these restrictions were applied to any other agricultural business, like a corn or soybean farmer? There’s absolutely no chance they would pass muster, and you would have industry lawyers filing a flurry of lawsuits faster than you could say “Monsanto.”

The bottom line is that cannabis businesses that want to start contributing money to political candidates who support cannabis legalization should check their local election laws before doing so. For now, at least.

For more on this, please check out my radio interview.