The Constitutionality of Campaign Finance Reform in Federal Election Comm’n v. Ted Cruz for Senate

One day before Election Day in 2018, Ted Cruz loaned his Senate campaign $260,000, which the campaign used to meet their financial obligations. Section 304 of the Bipartisan Campaign Reform Act (BCRA) caps the amount of post-election contributions that can be used to pay back a candidate’s pre-election loans up to twenty days after the election at $250,000. Although the campaign was able to repay Cruz $250,000, they were not able to repay the remaining $10,000 before twenty days had elapsed. [1] The Cruz campaign sued the FEC under the First Amendment and won in front of a three-judge district court. The FEC then appealed directly to the Supreme Court, which heard oral argument in Federal Election Commission v. Ted Cruz for Senate on January 19. [2] The campaign argued that Section 304 violates candidates’ First Amendment right to free speech in that the twenty day limit makes them uncertain whether loans they make to their campaigns will be repaid. Therefore, they are “forgoing the speech” that their loans “would purchase.” [3] On the other hand, the FEC argued that Section 304 protects a “substantial and legitimate” government interest in preventing corruption, and that the Court should trust Congress to create reasonable legislation about campaign funding. [4] The FEC is correct in that Section 304 satisfies any level of scrutiny, including strict scrutiny. A decision in the campaign’s favor would have the potential to make political corruption more likely and weaken the democratic system.

In Citizens United v. FEC (2010), Citizens United sought an injunction to prevent the BCRA from being applied to its movie, Hillary: The Movie. A district court denied the injunction, but the Supreme Court ruled 5-4 in the petitioner’s favor. [5] It held that it is unconstitutional to ban a corporation’s independent expenditures on political speech, overruling portions of Austin v. Michigan Chamber of Commerce and McConnell v. FEC. But the Court also found that the BCRA’s disclosure requirements were constitutional because they served a sufficiently compelling governmental interest in informing the electorate about independent expenditures. [6] The Court found that although the disclosure requirements did place a burden on speech, they did not completely obstruct it; rather, they were the “less restrictive alternative to more comprehensive regulations of speech.” [7]

The government undoubtedly has a compelling interest in preventing quid pro quo corruption, and Section 304 furthers that interest. The $250,000 limit is only imposed after 20 days have elapsed since Election Day, which simultaneously reassures candidates that their loans will have ample time to be repaid and prevents blatant bribery. Drawing a similarity to Citizens United, Justice Breyer said that Section 304 takes a “pro-democratic” stance in striking this balance by encouraging smaller candidates to challenge incumbents. [8] Citizens United found that the burden of the BCRA disclosure requirement on the First Amendment did not outweigh the government’s interest in informing the electorate. Here, Section 304 imposes little burden on expenditures or speech.

Section 304 was also carefully crafted to serve the government’s interests. Cruz argues that the restrictions imposed by Section 304 are arbitrary, and that the Act effectively sanctions $250,000 in bribery up to 20 days after Election Day. However, the FEC argues that Congress is “owed a certain amount of deference” because it has specific knowledge on how campaign finance works. [9] To reiterate Justice Breyer’s point, the balance that Section 304 strikes is thoughtfully and narrowly tailored to serve the government’s demonstrated interest in preventing quid pro quo corruption.

Section 304 clearly satisfies strict scrutiny, and the Supreme Court should rule in favor of the FEC. But it is also a matter of concern that campaign financing restrictions continue to be contested.  The FEC is correct when it says that the public sees corruption as a major issue — the Pew Research Center found that “[o]nly about one-quarter of Americans say they can trust the government in Washington to do what is right ‘just about always’ (2%) or ‘most of the time’ (22%).” [10] Removing the teeth from Section 304 would effectively give a green light to bribery when the public’s trust in its government is already low. As the Brennan Center for Justice wrote in its amicus brief, even the appearance of bribery can diminish public trust in the democratic system. [11] Therefore, a restriction on the flow of money between a contributor and a candidate is more than reasonable. If the Court were to erroneously rule in Cruz’s favor, the decision would put our democratic system at risk for the foreseeable future. 

Edited by Will Foster

Sources:

[1] Federal Election Commission v. Ted Cruz for Senate, Legal Information Institute (Jan. 13, 2022), online at https://www.law.cornell.edu/supct/cert/21-12 (visited Apr. 10, 2022).

[2] BCRA § 403(a)(3) (making decision of district court in this case “reviewable only by appeal directly to the Supreme Court of the United States”); see also Federal Election Commission v. Ted Cruz for Senate, SCOTUSblog, online at www.scotusblog.com/case-files/cases/federal-election-commission-v-ted-cruz-for-senate/ (visited Feb. 27, 2022). 

[3] Tr. of Oral Arg. in Federal Election Comm’n v. Ted Cruz for Senate, O.T. 2021, No. 21–12, p. 45 (“Your Honor, to whatever extent the candidate doesn’t loan that additional money, that 

candidate is forgoing the speech that that additional money would… purchase, as Justice 

Kavanaugh mentioned”).

[4] Tr. of Oral Arg. 25 (“So there is an established understanding that the government has a… substantial and legitimate interest in preventing the effects that might arise if federal officials were given money that would enrich themselves… personally”). 

[5] Citizens United v. Federal Election Commission, Oyez, online at https://www.oyez.org/cases/2008/08-205 (visited Feb. 27, 2022).

[6] Citizens United v. Federal Election Commission, 588 U.S. 310 (2010).

[7] Id at 369.

[8] Tr. of Oral Arg. 53 (query of Breyer, J.) (“That’s a pro-democratic interest”).

[9] Tr. of Oral Arg. 41 (“The second is Congress is owed a certain amount of deference both because it’s a coordinate branch of government and because it has special knowledge about the way that campaign financing works”).

[10] Public Trust in Government: 1958-2021, Pew Research Center (2021), online at https://www.pewresearch.org/?topic-page=395043 (visited April 4, 2022). 

[11] Brief for Brennan Center for Justice as Amicus Curiae in Federal Election Comm’n v. Ted Cruz for Senate, O.T. 2021, No. 21–12, online at https://www.brennancenter.org/our-work/court-cases/federal-election-commission-v-ted-cruz-senate-et-al (visited Apr. 16, 2022).