When a candidate for federal office lends money to his own election campaign, federal law imposes a $250,000 limit on the amount of post-election contributions that the campaign may use to repay the debt owed to the candidate. 52 U.S.C. 30116( j). That law is aimed at contributions that pose an obvious risk of fostering real or perceived corruption because they go directly into an officeholder’s pocket.
Senator Ted Cruz filed a lawsuit challenging the law on the theory that it violates the First Amendment. After Cruz prevailed before a three-judge panel of the U.S. District Court for the District of Columbia, the Federal Election Commission appealed to the Supreme Court. Public Citizen filed an amicus curiae brief supporting the FEC.
As our amicus brief explains, the $250,000 limit serves as a constitutional check on actual or perceived corruption because it applies to contributions that have minimal First Amendment value and maximal corruptive potential: those that go straight into the pocket of an officeholder who has already won an election. However, although Senator Cruz made a $260,000 loan to his campaign in the last hours of the 2018 election campaign, his committee repaid $250,000 of that loan using pre-election contributions, leaving a balance of only $10,000—an amount far below the statutory limit on post-election contributions. The statutory contribution limit thus does not interfere in any way with his ability to raise $10,000. Accordingly, Senator Cruz lacks standing to raise his constitutional challenge. The brief explains that the Court therefore should not reach the merits of the statutory limit on post-election contributions used to repay candidate loans, unless and until it is presented with a case in which that limit actually has operated, or threatens to operate, to restrict a candidate’s ability to raise funds to repay a loan.
On May 16, 2022, the Supreme Court affirmed the judgment of the three-judge court. The Court’s standing analysis agreed with two points made in our brief: First, Cruz’s claimed injury was not “self-inflicted,” because people challenging statutes on First Amendment grounds may choose to bring test cases that subject them to the statutes’ proscriptions, and they have standing to do so even though they chose to engage in the conduct at issue specifically to challenge the statute. Second, Cruz’s claimed injury did not come from the statute itself, but from a regulation that prevented him from seeking post-election contributions for the remaining $10,000 even though the statute itself did not do so. However, the Court held that because the FEC had invoked the challenged statute as its authority when it promulgated the regulation, Cruz could challenge the constitutionality of the statute to redress the injury caused by its implementing regulation. Having concluded that Cruz had standing on this basis, the Court affirmed on the merits, holding that post-election contributions to repay a candidate’s large loans to his campaign do not pose a risk of corruption because the contributions (like all other contributions to the campaign) will be limited to $2900 per contributor per elections, an amount that the Court said was unlikely to pose a threat of corruption.