The Supreme Court split along ideological lines in striking another campaign finance restriction Monday, agreeing with Republican Sen. Ted Cruz’s challenge to federal limits on the use of post-election contributions to repay a candidate’s loan to his campaign.
Few issues, along with related laws regarding voting rights, divide the court’s conservatives and liberals so cleanly. The 6-to-3 ruling, featuring the dueling opinions of conservative Chief Justice John G. Roberts Jr. and liberal Justice Elena Kagan, provided only the latest example.
“The government has not shown that [the law] furthers a permissible anticorruption goal, rather than the impermissible objective of simply limiting the amount of money in politics,” wrote Roberts, joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
The result was expected after arguments in the case brought by Cruz (Tex.), and Roberts said it was simply a logical progression in cases including one of its most controversial, Citizens United v. FEC.
“This Court has recognized only one permissible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or its appearance,” Roberts wrote, “We have consistently rejected attempts to restrict campaign speech based on other legislative aims.”
For example, “we have denied attempts to reduce the amount of money in politics … to level electoral opportunities by equalizing candidate resources … and to limit the general influence a contributor may have over an elected official,” he wrote. “However well intentioned such proposals may be, the First Amendment — as this Court has repeatedly emphasized — prohibits such attempts to tamper with the ‘right of citizens to choose who shall govern them.’ ” The quote is from one of the previous cases.
Kagan said this one should have been different, because post-election contributions to a winning candidate to pay off a personal loan carry unique corruption risks.
“All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment,” she wrote in an dissent joined by Justices Stephen G. Breyer and Sonia Sotomayor.
“It takes no political genius to see the heightened risk of corruption — the danger of 'I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders,” she continued.
The case involved a somewhat obscure portion of the McCain-Feingold Act, named after Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.)
It caps at $250,000 the amount federal candidates can raise and use after an election to repay personal loans. Cruz, in his 2018 Senate reelection campaign against Democrat Beto O’Rourke that Roberts noted was the most expensive in history, lent his campaign $260,000 the day before the general election.
The government tried to have the case thrown out, saying Cruz’s injury was “self-inflicted”; he chose the amount to exceed the limits for a test case. And his campaign had on hand $2.2 million raised before the election that could have been used to fully repay the loan.
But a panel of judges that heard the suit unanimously disagreed. The flaw in the government’s argument, they said, is that “it would require Senator Cruz to avoid an injury by subjecting himself to the very framework he alleges is unconstitutional.”
Roberts and the majority also agreed with the panel on the merits. Roberts wrote that even the government seemed to agree the provision “burdens candidates who wish to make expenditures on behalf of their own candidacy through personal loans.”
Loans are an important way to “jump-start” a campaign, especially important to those who challenge incumbents, he said. He noted that the limits on the contributions to candidates post-election are the same as pre-election, and thus carry no particularly corrosive effect. He criticized the law’s “need for prophylaxis-upon-prophylaxis.”
Roberts said the government was “unable to identify a single case of quid pro quo corruption in this context — even though most States do not impose a limit on the use of post-election contributions to repay candidate loans.”
And he rejected the notion that the contributions could be seen as gifts to the candidate, rather than simply making him whole for the money spent on the campaign.
“If the candidate did not have the money to buy a car before he made a loan to his campaign, repayment of the loan would not change that in any way,” he wrote.
Kagan rejected that on a point-by-point basis, starting with how the post-election contributions are different.
At that point, she wrote, both candidate and donor know what they are getting: The candidate is “deeply grateful” because his personal wealth is affected, and the donors know “as they paid him, so he will pay them.”
“In the coming months and years, they receive government benefits — maybe favorable legislation, maybe prized appointments, maybe lucrative contracts,” she wrote. “The politician is happy; the donors are happy. The only loser is the public. It inevitably suffers from government corruption.”
She provided examples of post-election contributions that she said had shown just such a pattern, and disputed the majority’s position that the restrictions hamper a candidate’s ability to spend his own money to further his campaign.
“The candidate can in fact self-fund all he likes,” she wrote. “The law impedes only his ability to use other people’s money to finance his campaign — much as standard (and permissible) contribution limits do. And even that third-party restriction is a modest one, applying only to post- (not pre-) election donations to repay sizable (not small) loans.”
She said the court had no reason to “second-guess Congress’s experience-based judgment about the specially corrupting effects of post-election donations to repay candidate loans.”
Cruz said through a spokesman that the decision was “a resounding victory for the First Amendment.”
The existing law “imposed an unconstitutional restriction on free speech that unfairly benefited incumbent politicians and the super wealthy,” the statement said. “This landmark decision will help invigorate our democratic process by making it easier for challengers to take on and defeat career politicians.”
The case is Federal Election Commission v. Ted Cruz for Senate.
Seung Min Kim contributed to this report.