TUESDAY, MAY 17 , 2022. THE WASHINGTON POST EZ RE A
Politics & the NationBY ROBERT BARNESThe Supreme Court split along
ideological lines in striking an-
other campaign finance restric-
tion Monday, agreeing with Re-
publican Sen. Ted Cruz’s challenge
to federal limits on the use of post-
election contributions to repay a
candidate’s loan to his campaign.
It was the latest Supreme Court
decision to knock out a part of the
landmark 2002 Bipartisan Cam-
paign Reform Act — popularly
known as the McCain-Feingold
Act — and reemphasized the
court’s view that many restric-
tions on c ampaign finance a re v io-
lations of the First Amendment’s
protection of political speech.
Few issues, along with related
laws regarding voting rights, di-
vide the court’s conservatives and
liberals so cleanly. The 6-to-3 rul-
ing, featuring the dueling opin-
ions of conservative Chief Justice
John G. Roberts Jr. and liberal
Justice Elena Kagan, provided
only the latest example.
“The government has not
shown that [the law] furthers a
permissible anticorruption goal,
rather than the impermissible ob-
jective of simply limiting the
amount of money in politics,”
wrote Roberts, joined by Justices
Clarence Thomas, Samuel A. Alito
Jr., Neil M. Gorsuch, Brett M. Ka-
vanaugh and Amy Coney Barrett.
The result was expected after
arguments in the case brought by
Cruz (Tex.), and R oberts said it was
simply a logical progression in
cases including one of its most
controversial, Citizens United v.
FEC.
“This Court has recognized
only one permissible ground for
restricting political speech: the
prevention of ‘quid pro quo’ cor-
ruption or its appearance,” Rob-
erts wrote, “We have consistently
rejected attempts to restrict cam-
paign s peech based on other legis-
lative aims.”
For example, “we have denied
attempts to reduce the amount of
money in politics... to level elec-
toral opportunities by equalizing
candidate resources... and to
limit the general influence a con-
tributor may have over an elected
official,” he wrote. “However well
intentioned such proposals may
be, the F irst Amendment — as this
Court has repeatedly emphasized
— prohibits such attempts to tam-
per with the ‘right of citizens to
choose who shall govern them.’ ”
The quote is from one of the p revi-
ous cases.
Kagan said this one should have
been different, because post-elec-
tion contributions to a winning
candidate to pay off a personal loan
carry unique corruption risks.
“A ll the money does is enrich
the candidate personally at a time
when he can return the favor — by
a vote, a contract, an appoint-
ment,” she wrote in an dissent
joined by Justices Stephen G.
Breyer and Sonia Sotomayor.
“It takes no political genius to
see the heightened risk of corrup-
tion — the danger of ‘I’ll make youricher and you’ll make me richer’
arrangements between donors
and officeholders,” she continued.
The case involved a somewhat
obscure portion of the McCain-
Feingold Act, named after Sens.
John McCain (R-Ariz.) and Russ
Feingold (D-Wis.)
It caps at $250,000 the amount
federal candidates can raise and
use after an election to repay per-
sonal loans. Cruz, in his 2018 Sen-
ate reelection campaign against
Democrat Beto O’Rourke that
Roberts noted was the most ex-
pensive in history, lent his cam-
paign $ 260,000 the day before the
general election.
The government tried to have
the case thrown out, saying Cruz’s
injury was “self-inflicted”; he
chose the amount to exceed the
limits for a test case. And his cam-
paign had on hand $2.2 millionraised before the election that
could have been used to fully re-
pay the loan.
But a panel of judges that heard
the suit unanimously disagreed.
The flaw in the government’s ar-
gument, t hey said, i s that “it would
require Senator Cruz to avoid an
injury by subjecting h imself to the
very framework he alleges is un-
constitutional.”
Roberts and the majority also
agreed with the panel on the mer-
its. Roberts wrote that even the
government seemed to agree the
provision “burdens candidates
who wish to make expenditures
on behalf of their own candidacy
through personal loans.”
Loans are an important way to
“jump-start” a campaign, espe-
cially important to those who
challenge incumbents, he said. He
noted t hat the limits on t he c ontri-butions to candidates post-elec-
tion are the same as pre-election,
and t hus carry no p articularly cor-
rosive effect. He criticized the
law’s “need for prophylaxis-upon-
prophylaxis.”
Roberts said the government
was “unable to identify a single
case of quid pro quo corruption in
this context — even though most
States do not impose a limit on the
use of post-election contributions
to repay candidate loans.”
And he rejected the notion that
the contributions could be seen as
gifts to the candidate, rather than
simply making him whole for the
money spent on the campaign.
“If the candidate did not have
the money to buy a car before he
made a loan to his campaign, re-
payment of the loan would not
change that in any way,” he wrote.
Kagan rejected that on a point-by-point basis, starting with how
the post-election contributions
are different.
At that point, she wrote, both
candidate and donor know what
they are getting: The candidate is
“deeply grateful” because his per-
sonal wealth is affected, and the
donors k now “as they paid him, so
he will pay them.”
“In the coming months and
years, they receive government
benefits — maybe favorable legisla-
tion, maybe prized appointments,
maybe lucrative contracts,” she
wrote. “The politician is happy; the
donors are happy. The only loser is
the public. It inevitably suffers
from government corruption.”
She provided examples of post-
election contributions that she
said had shown j ust such a pattern,
and disputed the majority’s posi-
tion that the restrictions hamper a
candidate’s a bility to spend his own
money to further his campaign.
“The candidate can in fact self -
fund all he likes,” she wrote. “The
law impedes only his ability to use
other people’s money to finance
his campaign — much as standard
(and permissible) contribution
limits do. And even that t hird-par-
ty restriction is a modest one,
applying only to post- (not pre-)
election donations to repay siz-
able (not small) loans.”
She said the court had no rea-
son to “second-guess Congress’s
experience-based judgment about
the specially corrupting effects of
post-election donations to repay
candidate loans.”
Cruz said through a s pokesman
that the decision was “a resound-
ing victory for the First Amend-
ment.”
The existing law “imposed an
unconstitutional restriction on
free s peech that unfairly benefited
incumbent politicians and the su-
per wealthy,” the statement said.
“This landmark decision will help
invigorate our democratic process
by making i t easier for c hallengers
to take on and defeat career politi-
cians.”
The case is Federal Election
Commission v. Ted Cruz for Senate.Seung Min Kim contributed to this
report.Court sides with Cruz, strikes campaign finance limit
JABIN BOTSFORD/THE WASHINGTON POST
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