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Supreme Court will hear Ted Cruz’s challenge of campaign contribution limit

The case accepted by the Supreme Court on Thursday traces back to the 2018 election, when Sen. Ted Cruz (R-Tex.) held off a challenge from Democrat Beto O’Rourke. (Jabin Botsford/The Washington Post)

The Supreme Court said Thursday it would consider Sen. Ted Cruz’s challenge to a law limiting post-election political contributions to repay a candidate’s loan to his campaign.

The Federal Election Commission (FEC) asked the court to take the case, after a three-judge panel in Washington sided with the Texas Republican and said the law unconstitutionally restricts a candidate’s political expression.

The case is among five the justices accepted as they began to fill out their docket for the term that begins Monday. The court will be meeting in person to hear arguments for the first time since March 2020. It will be the first time Justice Amy Coney Barrett takes the bench with her colleagues.

The provision Cruz challenged is part of the 2002 Bipartisan Campaign Reform Act. It limits the amount of money that federal candidates can raise and use after an election to repay personal loans. The government defends the law as necessary to prevent the appearance of quid pro quo corruption.

The limit is $250,000. Cruz, as part of his 2018 Senate reelection campaign against Democrat Beto O’Rourke, lent his campaign $260,000 the day before the general election.

The point was to challenge the law, as only $250,000 of that could be repaid with money raised after the election.

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The government tried to have the lawsuit thrown out, saying that Cruz’s injury was “self-inflicted.” Cruz chose the amount in order 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 the judges 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.”

On the larger question, the panel said the restriction could not be justified.

The FEC failed to demonstrate “that quid pro quo corruption or its appearance arises from post-election contributions to retire a candidate’s personal debt.”

It added that the government has not identified “a single case of actual quid pro quo corruption in this context” and that “many states impose no restriction on using post-election contributions to repay candidate loans.”

The Supreme Court has been increasingly supportive of the argument that campaign contributions are a form of political speech, and suspicious of the government’s ability to restrict it.

The case is FEC v. Ted Cruz for Senate. Like the others accepted Thursday, it will be heard early next year.

Among them is a free-speech case from Boston, where the city refused a group’s request to fly a “Christian flag” from one of three flagpoles by City Hall.

The city occasionally allows groups to fly a flag from one of the poles to commemorate certain events and had extended the courtesy to organizations celebrating gay pride and a visiting foreign delegation. In a 12-year period ending in 2017, it approved 284 flag-raisings and did not deny any, according to briefs in the case.

But it did turn down one from Camp Constitution, a group that says it aims to promote the country’s “Judeo-Christian moral heritage.” It wanted to raise a flag featuring a large Christian cross.

The group sued, arguing that the flagpole was a city-created public forum, and it was a violation of the group’s free speech to deny it the opportunity extended to others.

But lower courts, including the U.S. Court of Appeals for the 1st Circuit, ruled for the city, saying it has the right to choose which messages it endorses. The opinion said the city cannot be forced to express a religious message.

The case is Shurtleff v. City of Boston.

The court also agreed to hear a case brought by the heirs of a German Jewish woman who was forced to give the Nazis a valuable painting by Camille Pissarro in order to secure passage for her family out of Germany. Lower courts have ruled for a foundation that bought the painting years later. It hangs in a Madrid museum.

The case is Cassirer v. Thyssen-Bornemisza Foundation.