Supreme Court Spotlight: FEC v. Ted Cruz for Senate
By Brian Boyle, American Promise Senior Legal Counsel
Once again, the U.S. Supreme Court has an important campaign finance case on its docket. Imagine you are a candidate running for federal office and, before the election, you loan a big chunk of your own money to the campaign. Under rules set by Congress 20 years ago, the campaign is allowed to repay your loan by using pre-election contributions from your various donors, up to the full amount of whatever your loan was. (Keep in mind that the maximum individual contribution is $2,900 per election, so a large loan repayment would require pooling of several contributions.) The campaign could also repay you with post-election contributions, but only up to $250,000 — so if your loan was greater than $250,000, the remainder of your personal debt could not be repaid with post-election contributions. In FEC v. Ted Cruz for Senate, U.S. Senator Ted Cruz and his campaign committee have challenged the constitutionality of that provision, contending that the $250,000 loan repayment limit violates “the freedom of speech” protected by the First Amendment.
According to the Supreme Court’s current jurisprudence, campaign finance limits are only permissible if they can be shown to serve a compelling governmental interest in preventing quid pro quo corruption. Of course, most of us can think of other types of compelling interests that Congress or State legislatures might seek to advance through campaign finance laws — for example, a compelling interest in promoting political equality by limiting the extent to which wealth can buy political power. But the Supreme Court, in a series of controversial 5–4 decisions over the past five decades, has declared that any other potential interests are constitutionally out-of-bounds.
To satisfy the Court’s current doctrinal requirements, lawyers for the federal government are arguing that the $250,000 loan repayment limit is permissible because it serves a compelling governmental interest in preventing quid pro quo corruption. That argument should be a slam dunk. Unlike a pre-election contribution, when someone makes a post-election contribution to the winner of an election, there’s no longer a question whether the recipient candidate will be sworn in and have all the powers of elected office — so the risk of a quid pro quo exchange is even greater. What’s more, when a post-election contribution is used to repay a candidate’s personal loan, that contribution effectively becomes a personal gift to the newly elected official. As Justice Elena Kagan put it, “when contributors find a way to put money not in the campaign but into a candidate’s own personal pocket … that to me screams quid pro quo corruption.”
The Supreme Court heard argument in the case in January, and several of the Justices appeared supportive of Senator Cruz’s challenge. For example, Justice Amy Coney Barrett questioned whether there was sufficient “evidence of actual quid pro quo corruption causing problems” to justify the loan repayment limit. If accepted by a majority of the Court, her underlying premise — that Congress needs to show actual corruption and not merely the potential for corruption — would sharply diminish Congress’s ability to combat the risk of corruption. If the Court does end up narrowing the extent to which corruption concerns can justify limits on money-in-politics, the American people’s elected legislators will have even fewer pathways for enacting common sense campaign finance laws. All this in the name of “the freedom of speech,” so the Court says.
We’ll provide another update after the Supreme Court issues its opinion.
