Federal Election Commission v. Ted Cruz for Senate
Exercising its constitutional authority to prevent corruption in elections, Congress enacted Section 304 of the Bipartisan Campaign Reform Act of 2002 (BCRA), which bars federal candidates from using more than $250,000 in post-election campaign contributions to repay their personal campaign loans. Under Section 304 and its implementing regulations, campaigns may use pre-election contributions to repay loans exceeding $250,000 during the first 20 days following an election. Once this period is over, any loan balance exceeding $250,000 must be considered a contribution rather than a loan, which precludes repayment to the candidate.
In an effort to challenge Section 304, Senator Ted Cruz made a personal loan of $260,000 to his campaign the day before he was reelected in November of 2018. The campaign repaid $250,000 to Senator Cruz following the election but then, after more than 20 days passed, claimed the remaining $10,000 as a campaign contribution. Senator Cruz and his campaign then filed suit challenging Section 304 in federal court, arguing that the law’s repayment restrictions violate the First Amendment. A three-judge district court ruled in favor of Cruz, and the Federal Election Commission (FEC) appealed directly to the Supreme Court. CAC filed an amicus curiae brief in support of the FEC, urging the Supreme Court to uphold the constitutionality of Section 304 of the BCRA.
Our brief argued that the challenged law narrowly targets scenarios 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. As our brief explained, corruption was a chief concern of the Framers as they drafted the Constitution. The Framers therefore established governmental structures and political systems to help the government withstand corruption and ensure that it would be independent of potentially corrupting influences. The Framers also included in the Constitution a number of specific and strongly worded gift, salary, and appointment restrictions targeted at minimizing discrete opportunities for corruption, including the Foreign Emoluments Clause, the Domestic Emoluments Clause, and the Ineligibility and Emoluments Clause. Finally, aware that the specific safeguards written into the Constitution might not be sufficient on their own to guard against corruption in elections in particular, the Framers drafted the Elections Clause to give Congress the tools to supplement those safeguards and address new abuses that might arise in the future. Consistent with this constitutional text and history, Supreme Court precedent has long recognized Congress’ legitimate and compelling interest in preventing corruption and the appearance of corruption.
Our brief then explained why Section 304 of BCRA does not burden campaign speech and fits squarely within the constitutional tradition of avoiding corruption in government. Significantly, the BCRA provision targets only those post-election contributions that inure directly to a candidate’s personal benefit and that are made with the knowledge of whether a candidate has won or lost an election, thus posing a heightened risk of corruption. Section 304 does not limit the ability of candidates to raise money to fund their campaigns, nor does it restrict the amount that a candidate can personally contribute to a campaign or even the amount that a candidate can be repaid for such a loan. The manner in which the law operates is thus even less restrictive of speech than laws that limit campaign contributions, which the Supreme Court has repeatedly upheld as valid measures to limit corruption. And, as our brief explained, the BCRA provision prevents quid pro quo corruption in just the same manner as a restriction on the acceptance of gifts from foreign dignitaries and other related limitations in the Constitution.
Finally, our brief argued that the lower court ignored constitutional text and history, as well as Supreme Court precedent, by faulting the government for failing to provide specific examples of quid pro corruption averted by Section 304. In doing so, the court below ignored the self-evident and deeply historical premise that 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. Indeed, as our brief explained, the appearance of quid pro quo corruption alone is sufficient under the Court’s precedents to sustain the law. Consistent with these precedents, as well as the constitutional text and history reflecting the Framers’ commitment to anti-corruption principles, our brief urged the Court to uphold the BCRA provision.
On May 16, 2022, the Supreme Court issued its decision in favor of Senator Cruz, striking down Section 304 of the BCRA. Writing for a six-justice majority, Chief Justice Roberts held that Section 304 burdens core political speech without advancing any permissible interest. By rejecting the anti-corruption principles that Section 304 targets—post-election payments to candidates made when the donors know the winner and stand to benefit directly through political favors—the majority significantly whittles away the government’s anti-corruption interest.
In dissent, Justice Kagan, joined by Justices Breyer and Sotomayor, explained why the majority’s analysis is clearly wrong: when donors contribute after an election to a campaign to which a candidate has made significant personal loans, “[t]he recipe for quid pro quo corruption is thus in place: a donation to enhance the candidate’s own wealth (the quid), made when he has become able to use the power of public office to the donor’s advantage (the quo). The heightened threat of corruption—and, even more, of its appearance—is self-evident.” Thus, just as our brief forewarned, the Court’s opinion, in Kagan’s words, “fuels non-public-serving, self-interested governance,” wholly at odds with the text and history of the Constitution, and impairs “the integrity, both actual and apparent, of the political process.”
November 22, 2021
CAC files amicus curiae briefSup. Ct. Amicus Br.
January 19, 2022
Supreme Court hears oral argument
May 16, 2022
Supreme Court issues its decision