In Victory for Senator Cruz, Nine Open Campaign Finance Floodgates, Again

Senator Cruz, a man Alan Dershowitz called one of the most brilliant students he ever taught at Harvard Law School, notched a Supreme Court victory on Monday.The case, Federal Election Commission v. Ted Cruz for Senate, brings into focus the trend of the Nine extending constitutional protection to expenditures of money in pursuit of federal office. In a 6-to-3 vote, the high court struck down Section 304, a provision tucked into the 2002 McCain-Feingold campaign finance reform bill. It was intended to limit the influence of big money donations, and concomitant potential for corruption, in the less regulated post-election window. To that end, Section 304 barred campaigns from using more than $250,000 of funds raised more than 20 days after Election Day to pay down candidates’ personal loans to their campaign organizations. The decision written by Chief Justice Roberts and joined by Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, held that this restriction “violates the First Amendment rights of candidates and their campaigns to engage in political speech.” In finding that Section 304 ran afoul of the First Amendment, the court penned a sequel to Citizens United, which held that “the Government may not suppress political speech on the basis of the speaker’s corporate identity.” That decision, from 2009, struck down other elements of McCain-Feingold. A case from 1971, Monitor Patriot Co. v. Roy, held that the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” That guiding principle has led some justices to gaze on campaign finance restrictions with gimlet eyes.The outcome of this case vindicated a conscious effort by Mr. Cruz to change the law. In 2018, he intentionally lent his campaign $260,000 to establish the basis for a constitutional challenge to this provision and launched a lawsuit to recover the $10,000 difference between what he paid and what the law allowed.That set the stage for a protracted legal battle that delivered Mr. Cruz a district court victory, an appellate reversal, and finally a triumph at the Supreme Court. The court found that the law in question “inhibits candidates from loaning money to their campaigns in the first place, burdening core speech.”Explaining that “candidates who self-fund usually do so using personal loans,” Chief Justice Roberts reasoned that a law capping the ability to take on campaign loans makes speech less free, especially for new candidates seeking to gain a foothold.The crux of the debate between the majority opinion and the clutch of dissents turned on whether the law at hand served as a guardrail against corruption. The majority noted that “this Court has recognized only one permissible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or its appearance.”Despite the government’s protestations that striking the law would facilitate corruption, the court remained skeptical, with the chief justice citing existing regulations on campaign donations and the government’s inability to “identify a single case of quid pro quo corruption in this context,” profferings of “media reports and anecdotes” notwithstanding. The dissent, authored by Justice Elena Kagan, sees things differently. It paints a dystopian image of loans and debts sloshing through the political system and watering the weeds of corruption in their wake.Referring to the relationship between a candidate and his donors, Justice Kagan writes that “as they paid him, so he will pay them.” While “the politician is happy; the donors are happy,” the dissent acidly notes that “the only loser is the public. It inevitably suffers from government corruption.”Justice Kagan goes on to opine that “in striking down the law today, the Court greenlights all the sordid bargains Congress thought right to stop,” a decision she labels as “difficult to fathom.” “It takes no political genius to see the heightened risk of corruption,” Justice Kagan warns. This fear could be prospective rather than descriptive, as Federal Election Commission data show that since 2002, fewer than 3 percent of candidates have lent their own campaigns $250,000 or more. Under this new judicial dispensation, that number seems likely to rise. “Fathomable” or not, in prosecuting his case Senator Cruz has affected every race for federal office, not just his own.

In Victory for Senator Cruz, Nine Open Campaign Finance Floodgates, Again

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