WASHINGTON (CN) — Despite retorts from liberal justices warning of a bribery scheme, the conservative supermajority Supreme Court indicated support Wednesday for a case that could change the limits on how much money political candidates can recoup from their campaigns.
Senator Ted Cruz claims that while he was free to spend unlimited amounts of money on his campaign for reelection to the U.S. Senate, his First Amendment rights were violated by the government’s regulation on limits to how much he can receive in loan repayments with post-election funds.
Justice Elena Kagan countered that Cruz’s speech wasn’t limited by the provision but instead the limit was on how much he could get paid for that speech.
“It just limits the amount of speech that a candidate can make on somebody else's dime,” the Obama appointee said.
The case arose out of Cruz’s tight 2018 election against onetime presidential hopeful and current Texas gubernatorial candidate Beto O’Rourke. A day before the election, Cruz loaned his campaign $260,000 — $10,000 more than the Bipartisan Campaign Reform Act allows to be paid back with post-election funds. The campaign had 20 days after the election to reimburse Cruz in full without having to comply with the BCRA, but, at Cruz's request, it did not start repayment until after the 20 day period had elapsed. Cruz was paid back $250,000, with the remaining $10,000 converted into a campaign contribution.
Cruz sued the Federal Election Commission, and a panel of three federal judges ruled in his favor last year. The Supreme Court took up the case in September.
At oral arguments this morning, Justice Sonia Sotomayor said allowing candidates to be paid not for what they are doing in an election but after they get elected is a classic quid pro quo situation.
“My normal reaction is why do you give after an election to a candidate who's not going to spend it on getting elected," the Obama appointee said. "He's going to spend it on something in the past but certainly not nothing with respect to the actual election and his getting his post. And to me, that's a natural quid pro quo.”
Justice Stephen Breyer echoed the possibility for corruption, noting that the payments would be paybacks not contributions.
“It isn't a pure contribution, it is paying back money that the candidate advanced and that's a plus, and it's a big plus,” the Clinton appointee said. “So we say we will, with this particular kind of contribution — which isn't really a contribution, it's a payback — with this particular kind we will offset.”
Disagreeing that candidates like Cruz could use the provision to make money, Justice Amy Coney Barrett said Cruz would be no better off than before. Barrett also claimed there was no real evidence of quid pro quo corruption that the government could show.
“This doesn't enrich him personally because he's no better off than he was before,” the Trump appointee said. “It's paying a loan not lining his pockets.”
Justice Brett Kavanaugh said the provision would chill a candidate’s ability to loan their campaign money.
“It would seem to me that the law puts the candidate to a choice of spending your own money for a loan above $250,000 or forgoing any repayment for an amount above $250,000,” the Trump appointee said. “So the choice is to spend that without any possibility of getting it back or not spending it at all, and that seems to be therefore a chill on your ability to loan your campaign money.”
The government claimed Cruz doesn’t have standing to bring the case because the injury caused by the FEC’s regulation was self-inflicted. They say the loan repayment limits are constitutional while cautioning the justices against the financial benefits for candidates could lead to corruption.
“Appellees could have avoided any injury simply by behaving exactly as they would have if the statute and regulation did not exist,” said Malcolm Stewart, deputy solicitor general at the Justice Department. “Instead, they went out of their way to engage in transactions they would not have otherwise undertaken solely to subject the senator to a financial loss and thereby lay the groundwork for a lawsuit. That deliberate self-infliction of injury for no purpose other than to facilitate litigation suffered the causal link between the challenge laws and Senator Cruz's injury.”
Most of the justices disagreed with the argument that Cruz didn’t have standing to bring a lawsuit, citing many situations where one could create a circumstance for an injury to challenge a law.
“Test cases are not always, you don't always have a lack of standing,” Chief Justice John Roberts said. “If you get people challenging discriminatory housing practices, and they go in and say, you know, we're thinking about buying this house and they're discriminated against because of their race … they don't have to go in and prove that they would actually buy the house, do they?”
Charles Cooper, an attorney for Cooper & Kirk representing Cruz, said the government’s arguments were meritless and agreed with the justices that it didn’t matter if Cruz’s injury was self-inflicted. He called the government’s corruption concerns an excuse to justify an infringement on the First Amendment.
“The quid pro quo corruption costume that the government knows it has to dress this statute in because it's the only interest that this court has accepted as sufficiently compelling to justify a drag on First Amendment rights,” Cooper said.
While the case concerned constitutional issues, the justices also took note of statutory concerns over the 20-day limit.
“I mean, you can see it, it jumps off the page, you've got a statute that does not impose a First Amendment inhibition on a candidate, but some administrator in an agency said, well I'm going to add a 20-day limit on these First Amendment rights,” Roberts said to Cruz's attorney. “I mean, you're the one telling us how important they are, why would you let an agency make this up on their own?”
Justice Samuel Alito asked the government if the FEC would concede that the 20-day limit was unlawful — it has not — while acknowledging it wasn’t the question before the court. Roberts said it was still an interesting issue regardless, earning laughter from his colleagues.
While the justices signaled support for Cruz’s case, there was no sign they supported a total overhaul of BCRA as advocated for by Senate Minority Leader Mitch McConnell in a friend of the court brief.
The Department of Justice declined to comment further following oral arguments and Cruz’s attorney did not respond to requests for comment.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
-
Bay Area district attorney to face recall election April 15, 2024
