Supreme Court strikes down part of Bipartisan Campaign Reform Act
Photo credit: Stephanie Sundier
Supreme Court strikes down part of Bipartisan Campaign Reform Act

The US Supreme Court Monday struck down part of the Bipartisan Campaign Reform Act of 2002 (BCRA), ruling in favor of Senator Ted Cruz. Cruz sued the Federal Election Commission (FEC) over a $260,000 personal loan made to his senatorial campaign, which he attempted to recoup the costs of in violation of the BCRA’s section 304.

Section 304, “[l]imits repayment of a candidate’s personal loans incurred in connection with his or her campaign to $250,000 from contributions made to the candidate or any authorized committee of the candidate after the election.” Cruz continued soliciting donations post-election to recoup the cost of his personal loan, which was $10,000 over the limit imposed by section 304. 

The government claimed that Cruz purposefully waited to recoup the loan until after the election in order to challenge section 304, meaning, “any resulting injury is in essence traceable to [Cruz’s campaign], not the Government,” barring Cruz from bringing suit. The court rejected this argument stating, “we have made clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred.”

Regarding the constitutionality of the section itself, the Court repeatedly cited the seminal First Amendment campaign finance case, Buckley v. Valeo and First Amendment case, Monitor Patriot Co. v. Roy, saying:

The First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office…” It safeguards the ability of a candidate to use personal funds to finance campaign speech, protecting his freedom “to speak without legislative limit on behalf of his own candidacy.”

The Court reasoned that “the Government has not shown that Section 304 furthers a permissible anticorruption goal, rather than the impermissible objective of simply limiting the amount of money in politics. ”

Justices Kagan, Breyer, and Sotomayor dissented, stating:

Serious dangers of actual and apparent quid pro quo corruption attend the transactions Section 304 regulates… At that time [post-election], a campaign can use donations only to repay loans, of which some 97% come from candidates… So post-election donors can be confident their money will enrich a candidate personally. And those donors have of course learned which candidate won. When they give money to repay the victor’s loan, they know—not merely hope—he will be in a position to perform official favors. The recipe for quid pro quo corruption is thus in place: a donation to enhance the candidate’s own wealth (the quid), made when he has become able to use the power of public office to the donor’s advantage (the quo).

The decision was 6 to 3 along partisan lines, which have been increasingly noticeable on the Court over the past few years. The FEC publishes data on all personal, bank, and committee loans to candidate’s campaigns, with the majority being under the $250,000 limit.