WASHINGTON – Following oral argument in FEC v. Ted Cruz for Senate at the Supreme Court this morning, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

Congress enacted the McCain-Feingold law to prevent corruption in elections, in part, by barring federal candidates from using more than $250,000 in post-election campaign contributions to repay their personal campaign loans. The law narrowly targets post-election payments that pose a heightened risk of quid pro quo corruption, as well as the appearance thereof, and is consistent with the text and history of the Constitution, which make clear that combating corruption in government lies at the foundation of our system of democratic government.

Today’s argument, however, suggests that the $250,000 limit is at risk. This is true even though, as Justice Kagan explained, a post-election gift to a candidate that enables them to pay off a loan “screams quid pro quo corruption interest,” and as Justice Sotomayor pointed out, “Contributing to the winner [of an election, as opposed to a candidate], is a very different corrupting influence.”

To be clear, this part of McCain-Feingold does not meaningfully burden campaign speech. The restriction challenged by the Cruz campaign applies only after the election is over, when the voters have already selected a representative. And by targeting post-election payments, it fits squarely within the constitutional principle of avoiding corruption in government. Gifts given at a time when it is known that the politician will retain political power plainly give rise to an intolerable risk of actual quid pro quo corruption and the appearance of quid pro quo corruption. Disappointingly, too few of the Justices today seemed to recognize that principle.

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Resources:

CAC case page in Federal Election Commission v. Ted Cruz for Senate: https://www.theusconstitution.org/litigation/federal-election-commission-v-ted-cruz-for-senate/

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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