The US Supreme Court Wednesday heard oral arguments in Federal Election Commission v. Ted Cruz for Senate, a case concerning federal election law, political campaign finance rules, and spending limits.
On November 4, 2018, the day before the Senate general election in Texas, Senator Ted Cruz made two campaign finance loans to the Ted Cruz for Senate campaign. The loans totaled $260,000, $5,000 from Senator Cruz’s personal bank accounts, and $255,000 from a loan backed by Senator Cruz’s assets. Section 304 of the Bipartisan Campaign Reform Act of 2002 allows a candidate to repay loans using pre-election contributions within 20 days after the election. The campaign did not repay Senator Cruz’s personal loans during the 20-day period as required by the Act.
After the repayment period had elapsed, Senator Cruz received $250,000 back with a post-election contribution of $10,000. The post-election contribution occurred because the Act only allows up to $250,000 of a loan to be repaid post-election.
In 2019, Senator Cruz and Ted Cruz for Senate campaign challenged the Act in the United States District Court for DC. Senator Cruz argued that the law’s repayment restrictions violated the First Amendment. The Federal Election Commission moved to dismiss the case, arguing that the campaign did not have standing and could only repay Senator Cruz using pre-election funds. The District Court granted summary judgment in favor of Senator Cruz and Ted Cruz for Senate campaign. The District Court held that there was standing to sue because of the $10,000 financial injury and that the limits put a burden on political speech.
In July 2021, the Federal Election Commission appealed to the US Supreme Court, and the Court granted cert. On Wednesday, the two questions presented before the Court were:
- Whether appellees have standing to challenge the statutory loan-repayment limit.
- Whether the loan-repayment limit violates the Free Speech Clause of the First Amendment
The Justices appeared skeptical of Deputy Solicitor General Malcolm Stewart’s arguments on behalf of the government. Justice Alito, in particular, repeatedly pushed Solicitor General Stewart on the premise of his argument, asking whether the Solicitor General was arguing 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 have very easily satisfied the preconditions for the exercise of the right.
Solicitor General Stewart responded to the question stating that the government “would probably say that.” This response apparently surprised Justice Alito, who exclaimed, “can that possibly be the law?”
A decision in the case is expected by the summer.