By Amy Howe
January 19, 2022
at 7:35 p.m.
Charles Cooper, representing Sen. Ted Cruz, R-Texas, responds to a question from Judge Stephen Breyer. (Art Link)
Senator Ted Cruz is no stranger to the Supreme Court. In the 1990s he served as a law clerk to the late Chief Justice William Rehnquist, and between 2003 and 2010 he returned as a barrister to litigate nine cases there. On Wednesday, Cruz was in court in another capacity, challenging a federal campaign finance law that limits how and when candidates can repay loans they make to their own campaigns. During nearly 90 minutes of discussion, the justices appeared to agree that Cruz, a Republican from Texas, had the right to bring his case, but they were divided on whether the law itself was constitutional.
The law at the center of the case, Federal Election Commission vs. Ted Cruz for Senate, is Section 304 of the Bipartisan Campaign Reform Act, which allows candidates to use up to $250,000 in post-election contributions to repay loans that candidates made to their campaigns before the election. This meant that although Cruz could repay almost all of a $260,000 loan he made to his campaign the day before the 2018 election, the remaining $10,000 qualified as Cruz’s contribution to his campaign. Cruz then went to federal court, challenging Section 304 as a violation of the First Amendment, and a federal court agreed.
Representing the Federal Election Commission, Deputy Solicitor General Malcolm Stewart spent much of his time at the desk arguing that Cruz and his campaign lacked the legal right to sue, known as standing, because that (among other things) any injury they suffered was “self-inflicted. Without Section 304 in place to dispute, Stewart argued, Cruz would not have loaned his campaign money at all, or had he done so, he would have repaid it quickly with the contributions he had received before the election.
Stewart compared Cruz’s actions to a lawsuit brought against McDonald’s by a plaintiff who knew the fast-food giant was selling “dangerously hot coffee” but nevertheless bought a cup and poured it on himself just so he could. sue the restaurant. “I think we would all have the strong reaction,” Stewart told the judges, that such a lawsuit “cannot go forward” because the plaintiff’s “own willful conduct” in causing his injury “broke the causal link between any wrongdoing”. by McDonald’s and the “ultimate wound”.
Judges from both ends of the ideological spectrum were skeptical. Judge Samuel Alito pressed Stewart several times, asking if the premise of his argument was that someone “cannot challenge the constitutionality of a law that imposes an allegedly unconstitutional restriction on the exercise of a right if the party could very easily have satisfied the conditions precedent to the exercise of the right”. When Stewart replied that the government would “probably say that,” Alito was in disbelief. How, he asked, “can this be the law?”
Judge Stephen Breyer was also dubious. “I just don’t know of a case,” he told Stewart, challenging the constitutionality of a law in which the Supreme Court investigated the relative ease or difficulty of other options when challengers sway. oppose the use of these options.
Chief Justice John Roberts noted that just because a case is brought as a test case doesn’t mean plaintiffs don’t always have standing. Challenges to discriminatory housing practices, he observed, can arise after “testers” express interest in a home and experience racial discrimination; the courts do not require the testers to prove that they would have actually purchased the house before the lawsuit can proceed.
And Judge Clarence Thomas referred to Homer Plessy, the plaintiff in the landmark 1896 decision Plessy v. Ferguson, who was arrested after refusing to sit in the car reserved for non-white passengers on a Louisiana train. “How about,” Thomas asked Stewart, “about Plessy sitting in the wrong car?”
When Stewart turned to the question of whether the loan repayment limit violated the First Amendment, he pointed to the government’s interest in preventing corruption. But several judges have questioned whether limits on loan repayment actually help prevent corruption. Judge Amy Coney Barrett cited Cruz’s claim that paying off his loan “doesn’t personally enrich him because he’s no better off than he was before.” It’s paying a loan, not lining your pockets. Barrett then cited a lower court finding that the government had presented no evidence of “actual quid pro quo corruption” – that is, politicians exchanging favors for contributions.
Judge Brett Kavanaugh asked Stewart why another provision of federal campaign finance law — the $2,900 limit on individual contributions — wasn’t enough to address the government’s interest in preventing corruption. Corruption. He expressed more skepticism later, telling Stewart that Section 304 seemed like a “chill” on a candidate’s ability to lend their own money to their campaign: it forces candidates to choose between lending to their campaign over $250,000, knowing they won’t. get back some of that money, and not lend it out at all.
Representing Cruz, attorney Charles Cooper compared post-election contributions that pay for the pre-election speech to paying for tonight’s dinner with a credit card and then paying the credit card bill for dinner on the next month.
But the court’s liberal justices were unconvinced. In Justice Elena Kagan’s view, the loan repayment limit was more like a “restriction on how a candidate can use third parties to fund their speech, which is exactly what contribution limits are.” than an expense by the candidate. Later, Kagan made his opinion even clearer, telling Cooper that “the whole point of this law is that we start to worry when people start paying off the candidate’s debt, because that’s just another way of putting money in his pocket”. For Kagan, such a scenario “screams corruption quid pro quo”.
Judge Sonia Sotomayor echoed Kagan’s sentiment. Why, she wonders aloud, would anyone want to give money to a candidate after he was elected? The money will not be used to “promote a candidate because the candidate has already won”. “And for me,” she continued, “it’s a natural counterpart. I give because I want to draw my attention to you.
And Roberts raised what he described as an “interesting question”, wondering whether the case had been heard in the wrong lower court – a rare case. three-judge district court, called because Cruz challenged the constitutionality of a provision of the Bipartisan Campaign Reform Act. As part of the government’s argument that Cruz lacks standing to sue, the FEC argued that Cruz was in fact aggrieved by a regulation enacted under Section 304, which allows candidates to repay amounts over $250,000 using pre-election contributions as long as they do. therefore within 20 days of the election.
Roberts posited that Cruz could win his case if the settlement was invalid. But, he continued, Cruz does “not have the requirement of a constitutional challenge necessary to trigger the three-judge district court.”
Kagan suggested that, putting aside the permanent argument, the settlement’s 20-day requirement seems inconsistent with the text of Section 304, which does not mention such a requirement.
And Alito asked Stewart if the FEC was willing to admit the settlement was invalid. The government didn’t, leaving the judges to deal with this and other issues in Cruz’s case. A decision is expected by the summer.
This article has been originally published at Howe on the Court.