After his 2018 reelection campaign, Senator Ted Cruz filed a lawsuit challenging Section 304 of the Bipartisan Campaign Reform Act of 2002 (BCRA) which imposes a $250,000 limit on the amount of post-election contributions that a campaign may use to repay debt owed to the candidate when he or she lends money to his or her own campaign. On Monday, the Supreme Court delivered a victory to Senator Cruz, holding that:
Cruz and the Committee have standing to challenge the threatened enforcement of Section 304 of BCRA. We also conclude that this provision burdens core political speech without proper justification.
The Supreme Court sides with Sen. Ted Cruz in his First Amendment challenge to a federal campaign-finance law that limits how and when candidates can recoup loans that they make to their own campaigns. The vote is 6-3 along ideological lines.
— SCOTUSblog (@SCOTUSblog) May 16, 2022
The opinion, authored by Chief Justice John Roberts, continued:
[T]he burden on First Amendment expression is “evident and inherent” in the choice that candidates and their campaigns must confront. Although Section 304 “does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.” That penalty, of course, is the significant risk that a candidate will not be repaid if he chooses to loan his campaign more than $250,000. And that risk in turn may deter some candidates from loaning money to their campaigns when they otherwise would, reducing the amount of political speech. This “drag” on a candidate’s First Amendment right to use his own money to facilitate political speech is no less burdensome “simply because it attaches as a consequence of a statutorily imposed choice.” (citations omitted)
BCRA has sparked controversy since its enactment:
The court previously struck down other provisions of that law with McCutcheon v. FEC in 2014, which abolished some limits on individuals’ political donations; Citizens United v. FEC in 2010, which ruled corporations and other groups shouldn’t be subject to restrictions on campaign spending; and Davis v. FEC, which struck down a “millionaire’s amendment” that allowed candidates going up against wealthy challengers that self-fund their campaigns to raise additional funds.
Senate Republican Leader Mitch McConnell previously challenged BCRA in McConnell v. FEC (2003).
In a brief supporting Cruz's position, Republican Leader Mitch McConnell argued:
This case presents the latest First Amendment challenge to yet another of BCRA’s unconstitutional features: the prohibition on a campaign using postelection contributions to repay a candidate’s personal loans over $250,000. As the court below concluded, that limit “runs afoul of the First Amendment.”
The burden imposed by BCRA’s loan-repayment limit “is evident and inherent in the choice that confronts” candidates who wish to use personal loans for campaign financing. The limit means a candidate might not recoup amounts in excess of $250,000; thus the limit chills core political speech, especially speech by unknown challengers who need to spend more to be heard. And the loan-repayment limit does not serve any legitimate government interest. As this Court has held, the only interest that can justify a burden on core political speech is “preventing corruption or the appearance of corruption.” The government cannot even pretend that the limit serves that interest. After all, the limit also applies to candidates who lose the election. (citations omitted)
Other briefs filed in support of Senator Cruz included those filed by the Republican National Committee; Senators Roy Blunt, Bill Cassidy, Kevin Cramer, Cindy Hyde-Smith, and Roger Wicker; and the Institute for Free Speech.
Senator Cruz was represented by RNLA members Chuck Cooper (Cooper & Kirk) and Chris Gober (The Gober Group). Congratulations on a meaningful victory and job well done!