Ted Cruz for Senate v. Federal Election Commission ( 2021 )

TED CRUZ FOR SENATE, et al., Plaintiffs
v.
FEDERAL ELECTION COMMISSION, et al.,
Defendants.
Civil No. 19-cv-908 (NJR) (APM) (TJK).
United States District Court, District of Columbia
June 3, 2021.
Charles J. Cooper, John D. Ohlendorf, J. Joel Alicea,
Cooper & Kirk, PLLC, and Chris Gober, The Gober Group
PLLC, for Plaintiffs.
Lisa J. Stevenson, Kevin Deeley, Harry J. Summers, Seth
Nesin, and Tanya Senanayake, Federal Election Commission,
Washington, DC, for Defendants.
Before: RAO, Circuit Judge, MEHTA and KELLY, District
Judges.
MEMORANDUM OPINION
RAO, Circuit Judge:
In our constitutional democracy, elections are the primary
way for the people to express their political will. Political
speech promotes the free exchange of ideas about principles of
government, pressing policy matters, and the relative merits of
candidates for office. In recognition of the centrality of free
speech to our democracy, the Supreme Court has consistently
held that “the First Amendment ‘has its fullest and most urgent
application’ to speech uttered during a campaign for political
office.” Eu v. San Fran. Cnty. Dem. Cent. Comm., 489 U.S.
214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S.
265, 272 (1971)). Protections for political speech extend to
2
campaign financing because effective speech requires
spending money. See Buckley v. Valeo, 424 U.S. 1, 19–23
(1976) (per curiam).
This case raises a constitutional challenge to a somewhat
obscure campaign finance restriction that limits the amount of
post-election contributions that may be used to repay a
candidate’s pre-election loans. Section 304 of the Bipartisan
Campaign Reform Act of 2002 prohibits candidates from using
post-election contributions to repay personal loans over
$250,000. See 52 U.S.C. § 30116(j) (the “loan-repayment
limit”). Senator Rafael Edward “Ted” Cruz and his campaign
committee Ted Cruz for Senate brought this suit to invalidate
and enjoin the enforcement of Section 304 and its
implementing regulation. We find that the loan-repayment
limit burdens political speech and thus implicates the
protection of the First Amendment. Because the government
has failed to demonstrate that the loan-repayment limit serves
an interest in preventing quid pro quo corruption, or that the
limit is sufficiently tailored to serve this purpose, the loan-
repayment limit runs afoul of the First Amendment. We
therefore grant summary judgment for Senator Cruz and his
campaign.
I.
A.
Candidates for federal office require substantial funds to
support their campaigns. Funding may come from individual
contributions, which are subject to a per-election cap. 1 See
1
The current base limit is set at $2,900 per election. See 86 Fed. Reg.
7,867, 7,869 (Feb. 2, 2021). A primary election, general election,
3
Federal Election Campaign Act of 1971 (“FECA”), Pub. L. No.
92-225, 86 Stat. 3 (codified as amended at 52 U.S.C. § 30116);
see also 52 U.S.C. § 30116(a)(1)(A) & (c). Candidates may
also self-finance their campaigns without monetary limits. See
11 C.F.R. § 110.10; see also Buckley, 424 U.S. at 51–54. Self-
financing often takes the form of loans, either from a
candidate’s personal funds or through a third-party lender. A
campaign may repay a candidate’s loans using contributions
received both before and after the election. Under Section 304
of the Bipartisan Campaign Reform Act of 2002 (“BCRA”),
however, a campaign may repay only $250,000 of a
candidate’s pre-election loans with post-election contributions.
See Pub. L. No. 107-155, § 304, 116 Stat. 81 (codified at 52
U.S.C. § 30116(j)).
The loan-repayment limit intersects with other restrictions
on the use of campaign contributions promulgated by the
Federal Election Commission (“FEC” or “Commission”). For
instance, an individual may designate a contribution for a
particular election, including a previous election. See 11 C.F.R.
§ 110.1(b)(2)(i). If designated for a previous election, a
contribution may be accepted “only to the extent that [it] does
not exceed net debts outstanding” from that election. See id.§ 110.1(b)(3)(i). A campaign’s “net debts outstanding” for an
election equals the “total amount of unpaid debts and
obligations” minus its total available resources. Id.
§ 110.1(b)(3)(ii)(A)–(C). A campaign may accept post-
election contributions only to the extent necessary to pay down
a net shortfall. To effectuate the loan-repayment limit in
Section 304, the calculation of “net debts outstanding”
excludes the amount of any candidate loans “that in the
runoff election, and special election are treated as separate elections.
See 52 U.S.C. § 30101(1)(A).
4
aggregate exceed $250,000 per election.” Id.§ 110.1(b)(3)(ii)(C). The $250,000 limit applies to third-party
loans secured by the candidate and also to loans from the
candidate’s personal funds. See id. § 116.11(a).
A campaign has two options to pay back a candidate’s
personal loans. First, a campaign “[m]ay repay the entire
amount of the personal loans using contributions” made before
the election. Id. § 116.11(b)(1). If the campaign chooses to use
pre-election contributions, “it must do so within 20 days of the
election.” Id. § 116.11(c)(1). Second, pursuant to Section 304,
a campaign may repay up to $250,000 of the personal loans
with post-election contributions. After the election, any
balance of the personal loan that exceeds $250,000 will be
treated “as a contribution by the candidate.” Id. § 116.11(c)(2).
B.
This case arose from Senator Cruz’s 2018 campaign for
reelection to the United States Senate. The day before the
general election, Senator Cruz made two loans totaling
$260,000 to his campaign: $5,000 from his personal bank
account and $255,000 from a third-party lender secured with his
personal assets. Senator Cruz won reelection.
After the election, Senator Cruz’s campaign had almost
$2.5 million in debt against approximately $2.2 million in cash
on hand. The campaign “used the funds it had on hand to pay
vendors and meet other obligations instead of repaying [Senator
Cruz’s] loans.” Compl. ¶ 29, ECF No. 1. The campaign did not
use any pre-election funds within twenty days of the election to
repay the Senator’s loans, as Section 304’s implementing
regulation would have permitted. Instead, the campaign repaid
Senator Cruz the maximum $250,000 with post-election
contributions but Section 304 prevented the campaign from
5
paying back the final $10,000. The $10,000 balance of those
loans was subsequently deemed a campaign contribution from
Senator Cruz.
Senator Cruz and his campaign (collectively, the “Cruz
campaign”) brought suit against the FEC, alleging that
Section 304 of BCRA and its implementing regulation, 11
C.F.R. § 116.11, violate the First Amendment. The complaint
contends that the loan-repayment limit unconstitutionally
infringes the First Amendment rights of Senator Cruz, his
campaign, other candidates, and any individuals who might
seek to make post-election contributions. Because the
complaint concerned a constitutional challenge to a provision
of BCRA, the Cruz campaign also applied for a three-judge
district court pursuant to Section 403 of BCRA and 28 U.S.C.
§ 2284. The FEC moved to dismiss for lack of standing and also
argued that a three-judge court would not have subject matter
jurisdiction. The one-judge district court denied the FEC’s
motion to dismiss, held the Cruz campaign had standing to
challenge the loan-repayment limit, and granted the Cruz
campaign’s application for a three-judge district court. See Ted
Cruz for Senate v. FEC, 2019 WL 8272774, at *5–8 (D.D.C.
Dec. 24, 2019). We convened to hear and decide the case.
Following additional preliminary proceedings, 2 the Cruz
campaign and the FEC both moved for summary judgment.
2
We assumed supplemental jurisdiction over the Cruz campaign’s
constitutional and Administrative Procedure Act claims against the
implementing regulation. See Ted Cruz for Senate v. FEC, 451 F.
Supp. 3d 92, 100 (D.D.C. 2020). We held these claims in abeyance
pending resolution of the constitutional challenge to Section 304.
Order, Ted Cruz for Senate v. FEC, No. 1:19-cv-00908 (D.D.C. Apr.
15, 2020), ECF No. 49. Our holding that Section 304 cannot pass
6
Summary judgment is warranted if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “[I]n ruling on cross-
motions for summary judgment, the court shall grant summary
judgment only if one of the moving parties is entitled to
judgment as a matter of law upon material facts that are not
genuinely disputed.” Shays v. FEC, 424 F. Supp. 2d 100, 109
(D.D.C. 2006). Because the Cruz campaign and the FEC agree
that there is no genuine dispute of material fact, we resolve this
case by summary judgment.
II.
To determine whether the loan-repayment limit abridges
First Amendment rights we follow the approach taken in
McCutcheon v. FEC, the Supreme Court’s most recent foray
into the constitutionality of a campaign finance regulation. 572
U.S. 185 (2014) (plurality opinion). First, we assess whether
the loan-repayment limit burdens political speech and thus
implicates the protection of the First Amendment. Second,
because we conclude that the limit burdens political speech, we
must carefully scrutinize the government’s interests and the fit
between that interest and the regulatory means chosen to
effectuate it. Even under the less exacting test of closely drawn
scrutiny, we find the government fails to demonstrate that the
loan-repayment limit serves an interest in preventing quid pro
quo corruption or its appearance. Moreover, the loan-
repayment limit has only a tenuous connection to the asserted
government interest in preventing corruption and thus lacks the
close tailoring necessary under the First Amendment.
constitutional muster moots the Cruz campaign’s regulatory
challenges.
7
A.
When presented with a less familiar type of campaign
finance regulation, we must determine at the outset whether the
restriction burdens the exercise of political speech. See id. at
203–06; Ariz. Free Enter. Club’s Freedom Club PAC v.
Bennett, 564 U.S. 721, 736–47 (2011); Davis v. FEC, 554 U.S.
724, 738–40 (2008). The Cruz campaign argues the loan-
repayment limit burdens speech by limiting campaign
expenditures and contributions. The FEC maintains the limit
does not burden speech at all. We find the loan-repayment limit
burdens political speech and thus implicates the protection of
the First Amendment.
The First Amendment provides that “Congress shall make
no law … abridging the freedom of speech.” U.S. CONST.
amend. I. This Amendment “is designed and intended to
remove governmental restraints from the arena of public
discussion, putting the decision as to what views shall be
voiced largely into the hands of each of us, in the belief that no
other approach would comport with the premise of individual
dignity and choice upon which our political system rests.”
McCutcheon, 572 U.S. at 203 (cleaned up). Robust and free
political discussion is essential to the republican form of
government established by our Constitution. Given the
fundamental interests at stake, the First Amendment
“safeguards an individual’s right to participate in the public
debate through political expression and political association.”
Id. Because financing for political campaigns implicates the
freedom to speak and to associate, the Supreme Court has long
recognized that limitations on campaign spending “necessarily
reduce[] the quantity of expression by restricting the number
of issues discussed, the depth of their exploration, and the size
of the audience reached.” Buckley, 424 U.S. at 19.
8
Since Buckley, the Court’s decisions have focused on
identifying whether a restriction on campaign finance burdens
expenditures or contributions, in part because the distinction
can affect the standard of review. 3 See id. at 25, 44–45. But it
is well established that both expenditures and contributions
implicate “fundamental First Amendment activities.” Id. at 14.
When a candidate makes expenditures on behalf of her
campaign, she exercises her right to speak; and when a
contributor donates to that campaign, he exercises the right to
associate with the candidate and to express his support. The
contributions to a campaign in turn promote more expenditures
and political speech by the candidate.
In recent decisions, the Court has declined to eliminate the
distinction between expenditures and contributions even as it
has focused on speech interests more generally. See, e.g.,
McCutcheon, 572 U.S. at 199; id. at 228 (Thomas, J.,
concurring in the judgment) (suggesting that the distinction
between expenditures and contributions “has only continued to
erode in the intervening years”) (cleaned up). The Court has
emphasized the central question of whether and how a
challenged regulation burdens political speech. For example,
in McCutcheon, the Court explained that Buckley’s distinction
between expenditure and contribution limits stemmed from the
“the degree to which each encroaches upon protected First
Amendment interests.” Id. at 197. The Court assessed the
burden on expressive and associational rights imposed by the
aggregate contribution limits challenged in that case. See id. at
204–05. In Davis, the Court found that a regulation burdened a
3
While burdens on expenditures must withstand strict scrutiny, the
Court has assessed burdens on contributions under a less demanding,
“but still ‘rigorous standard of review.’” McCutcheon, 572 U.S. at
197 (quoting Buckley, 424 U.S. at 29).
9
candidate’s expenditures because it raised contribution limits
asymmetrically, that is, only for the opponents of a candidate
who spent over a certain amount of his own money. See 554
U.S. at 738–40. The Court focused on how the regulation
functioned to analyze the burden that it imposed. See id.; see
also Bennett, 564 U.S. at 736–47 (evaluating the specific
operation of Arizona’s matching funds provision and holding
that it substantially burdened speech). In a political campaign,
expenditures and contributions are part of a connected cycle of
speech and association protected by the First Amendment.
We find that the loan-repayment limit restricts political
expression and association for candidates and their
contributors. To begin with, the loan-repayment limit burdens
candidates who wish to make expenditures through personal
loans because the limit constrains the repayment options
available to the candidate. 4 Whereas other campaign debts may
be repaid by post-election contributions, candidate loans above
$250,000 do not receive the same treatment. That the candidate
makes a choice to finance his campaign with personal loans,
rather than through other forms of debt, does not minimize the
First Amendment harm. Cf. Davis, 554 U.S. at 739 (“The
4
In general, a loan from a candidate to his campaign is treated as an
expenditure. Both FECA and its regulations define the term
“expenditure” to include loans. See 52 U.S.C. § 30101(9)(A)(i)
(“The term ‘expenditure’ includes … any … loan, … made by any
person for the purpose of influencing any election for Federal
office[.]”); 11 C.F.R. § 100.111(a) (“A … loan … made by any
person for the purpose of influencing any election for Federal office
is an expenditure.”); 11 C.F.R. § 100.111(b) (“For purposes of this
section, the term payment includes … any guarantee or endorsement
of a loan by a candidate or a political committee.”); see also
Anderson v. Spear, 356 F.3d 651, 672 (6th Cir. 2004) (“[L]oans are
candidate expenditures, unless and until they are repaid.”).
10
resulting drag on First Amendment rights is not constitutional
simply because it attaches as a consequence of a statutorily
imposed choice.”). Candidate loans comprise the majority of
campaign debt, and personal loans will sometimes be the only
way for a candidate to raise enough money for an effective
campaign in the short term. The limit places a particular burden
on relatively unknown challengers who may require more
financing up front in order to wage an effective campaign
against a better funded incumbent. See Anderson v. Spear, 356
F.3d 651, 673 (6th Cir. 2004) (“[A] candidate may need to
speak early in order to establish her position and garner
contributions.”).
We also note that since the enactment of BCRA and the
loan-repayment limit, “there is a clear clustering of loans right
at the $250,000 threshold.” Alexei Ovtchinnikov & Philip
Valta, Debt in Political Campaigns 24 (HEC Paris Research
Paper No. FIN-2016-1165, May 2020). During this same time
period, the percentage of candidate loans above $250,000 has
remained roughly the same while spending on Senate and
House campaigns has more than doubled, indicating that the
loan-repayment limit constricts candidate lending.
We find the burden imposed by Section 304 “is evident
and inherent in the choice that confronts” candidates who wish
to use personal loans to finance their campaigns. Bennett, 564
U.S. at 745 (citing Davis, 554 U.S. at 738–40). The limit
imposes a “drag” on the candidate’s First Amendment activity
by discouraging the personal financing of campaign speech.
Davis, 554 U.S. at 739.
The FEC defends the constitutionality of the loan-
repayment limit by maintaining that it does not burden political
speech at all, because “[m]oney that repays a candidate’s
11
personal loan after an election effectively goes into the
candidate’s pocket, and not to fund speech or speech-related
activities.” FEC Mem. in Supp. of Mot. for Summ. J. (“FEC
Mot.”) 20, ECF No. 65. The Commission highlights that the
loan-repayment limit does not cap the amount of candidate
financing or prohibit a candidate from loaning his campaign
more than $250,000, and the candidate remains free to repay
the full amount of the loan with pre-election contributions.
While it is true that the loan-repayment limit is not a ban
on personal financing, the First Amendment’s protection has
never been limited to direct restrictions on expenditures,
because “[t]he First Amendment would … be a hollow
promise if it left government free to destroy or erode its
guarantees by indirect restraints.” United Mine Workers of Am.
v. Ill. State Bar Ass’n, 389 U.S. 217, 222 (1967). Laws that
regulate in the First Amendment arena must be scrutinized
even when the “deterrent effect on [speech] arises, not through
direct government action, but indirectly as an unintended but
inevitable result of the government’s conduct.” Buckley, 424
U.S. at 65.
Even indirect regulations of speech may run afoul of the
First Amendment, because they can “abridg[e] the freedom of
speech.” U.S. CONST. amend. I. The word “abridge” means “to
contract, to diminish, to cut short.” 1 SAMUEL JOHNSON, A
DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785); see
also OXFORD ENGLISH DICTIONARY 43 (2d ed. 1989)
(“abridge”: “To curtail, to lessen, to diminish (rights,
privileges, advantages, or authority)”). At the time of the
enactment of the First Amendment, as well as today, the plain
meaning of “abridge” is to diminish or to curtail the freedom
of speech. Consistent with this meaning, the First Amendment
protects individuals not only from direct and outright bans on
12
speech, but also indirect actions the government might take to
“abridge” the central freedom to speak freely in the democratic
process.
Following these general principles, the Supreme Court has
found a First Amendment burden even absent an outright ban
or cap, when the regulation acted as a “drag” on speech—
which is to say an “abridgment” of speech. Davis, 554 U.S. at739–40. In Davis, the Supreme Court held unconstitutional a
provision of BCRA that relaxed the base contribution limits for
a candidate’s opponents if the candidate spent more than
$350,000 of his own funds. The provision burdened free
speech rights even though it “d[id] not impose a cap on a
candidate’s expenditure of personal funds.” Id. at 738–39.
Instead, the challenged provision “impose[d] an unprecedented
penalty” on candidates who chose to “robustly exercise[]
[their] First Amendment right[s].” Id. at 739. Similarly, in
Bennett, the Court held unconstitutional an Arizona law that
gave matching funds to publicly financed candidates if
privately financed candidates—or independent expenditure
groups—spent over a set amount. See 564 U.S. at 728. The
Court concluded that the Arizona law “plainly force[d] the
privately financed candidate to ‘shoulder a special and
potentially significant burden’ when choosing to exercise his
First Amendment right to spend funds on behalf of his
candidacy.” Id. at 737 (quoting Davis, 554 U.S. at 739). If the
law curtails a candidate’s ability to speak on his behalf, it runs
afoul of the First Amendment even when the law is not an
outright ban.
The FEC seeks to distinguish Davis and Bennett because
those cases involved a penalty for candidate speech above a
certain threshold, whereas the loan-repayment limit has no
similar penalty—by loaning his campaign more than $250,000
13
a candidate does not indirectly fund his opponent through
either liberalized, asymmetrical contribution limits (Davis) or
matching funds (Bennett). First Amendment burdens, however,
are not limited to prescribed forms. Our review must scrutinize
regulatory burdens in order to vigorously protect the freedom
of speech. While not identical to previously challenged
regulations, the loan-repayment limit restricts a candidate’s
campaign expenditures by circumscribing the repayment
options for candidate loans over $250,000. 5
The FEC’s insistence that the loan-repayment limit does
not burden political speech overlooks the reality of how the
limit functions. The FEC narrowly focuses on the repayment
of the loan and through this lens notes that the loan-repayment
limit does not restrict expenditures because the candidate
remains free to loan or contribute as much money as he wishes
to his campaign. 6 The FEC’s cramped understanding of the
5
On the flip side, the loan-repayment limit may also impact
contributors. Candidate loans over $250,000 are singled out and
excluded from the “net debts outstanding” that a campaign may pay
off with post-election contributions. The FEC’s regulations permit
contributors to designate their contributions for a prior election. An
individual who wanted to contribute to Senator Cruz after the 2018
election could not have contributed to—and thus expressed his
support for—Senator Cruz’s 2018 election campaign if the only debt
remaining was the Senator’s loan in excess of $250,000.
6
The FEC suggests there is no restriction on political speech in this
case, relying on FEC v. O’Donnell, 209 F. Supp. 3d 727 (D. Del.
2016). That case is inapposite, however, because it concerned
FECA’s ban on the use of contributions to pay a candidate’s personal
expenses. The court held such contributions did not “facilitate
political expression.” Id. at 739. By contrast, the loan-repayment
limit restricts political expression and implicates the First
Amendment in a way that personal expenses for a new outfit and a
14
First Amendment fails to provide adequate protection to the
important free speech interests at stake. The FEC would isolate
the transactions at issue until they no longer resemble
campaign expenditures or contributions.
In determining whether First Amendment interests are
implicated, however, we must focus on whether a statute
burdens political speech, not whether a particular regulatory
label is a perfect fit. The relative novelty of a campaign finance
regulation cannot insulate it from judicial scrutiny because
“political speech must prevail against laws that would suppress
it, whether by design or inadvertence.” Citizens United v. FEC,
558 U.S. 310, 340 (2010). Legislators may try different
regulatory approaches to protect against quid pro quo
corruption; however, any such regulation of campaigns must
comport with the First Amendment.
The loan-repayment limit implicates First Amendment
interests. A candidate’s loan to his campaign is an expenditure
that may be used for expressive acts. Such expressive acts are
burdened when a candidate is inhibited from making a personal
loan, or incurring one, out of concern that she will be left
holding the bag on any unpaid campaign debt.
This case illustrates the reality that contributions and
expenditures are often “two sides of the same First Amendment
coin.” Buckley, 424 U.S. at 241 (Burger, C.J., concurring in
part and dissenting in part). Contributions allow a candidate to
make further expenditures, reflecting the practical link between
the associational and expressive activity of the candidate and
contributor. By limiting the amount of post-election
contributions that can be used to retire candidate loans, the
gym membership arguably do not. See 52 U.S.C. § 30114(b)(2)(B)
& (I).
15
loan-repayment limit abridges political speech and implicates
the protection of the First Amendment.
B.
Because the loan-repayment limit encumbers political
speech, the government has “the burden of proving the
constitutionality of its actions.” McCutcheon, 572 U.S. at 210
(cleaned up). The parties dispute the relevant standard of
review. The Cruz campaign maintains we should apply either
the strict scrutiny applicable to expenditure limits or the closely
drawn scrutiny applied to contribution limits. By contrast, the
FEC suggests the loan-repayment limit must be analyzed under
deferential rational basis review because the limit burdens no
First Amendment interests. Because we find the loan-
repayment limit restricts expressive and associational interests
in political campaigns, we must apply a form of heightened
scrutiny, either strict or closely drawn.
Under either form of heightened scrutiny, we assess the
government’s asserted interest in restricting speech and the fit
between that interest and the means the government has chosen
to fulfill it. See id. at 199. Applying strict scrutiny, a regulation
will be upheld only if it furthers a compelling government
interest and the government uses the least restrictive means of
furthering that interest; whereas under closely drawn scrutiny
a regulation will be upheld “if the State demonstrates a
sufficiently important interest and employs means closely
drawn to avoid” abridging First Amendment freedoms. See id.
at 197.
The loan-repayment limit fails under even the less
exacting test of closely drawn scrutiny and so, as in
McCutcheon, we have no need to “parse the differences”
between the standards of scrutiny. Id. at 199. The government
16
fails to demonstrate that the loan-repayment limit serves an
interest in addressing quid pro quo corruption. In addition, we
find “a substantial mismatch,” id., between the government’s
asserted interest and the loan-repayment limit.
1.
The government bears the burden of demonstrating that
the loan-repayment limit serves a sufficiently important
interest that justifies the burden on political speech. The
Supreme Court has made clear that the only recognized
government interest in restraining political speech is
“preventing corruption or the appearance of corruption.” Id. at
206–07. The Court has considered—and rejected—other
government justifications such as “reduc[ing] the amount of
money in politics,” id. at 191; “level[ing] electoral
opportunities by equalizing candidate resources and
influence,” Bennett, 564 U.S. at 748 (cleaned up); reducing
“[i]ngratiation and access,” Citizens United, 558 U.S. at 360;
or equalizing viewpoints among individuals and groups,
Buckley, 424 U.S. at 48–49. The government’s interest in
eliminating corruption is limited to quid pro quo corruption, in
other words, “dollars for political favors.” McCutcheon, 572
U.S. at 192 (quoting FEC v. Nat’l Conserv. PAC, 470 U.S. 480,
497 (1985)). To comport with the First Amendment, a
regulation of political speech must target only this particular
form of corruption, which means “the Government may not
seek to limit the appearance of mere influence or access.” Id.
at 208.
In addition, it is not sufficient for the FEC merely to assert
an interest in preventing quid pro quo corruption. The
government must demonstrate the validity of its interest by
more than “mere conjecture.” Nixon v. Shrink Mo. Gov’t PAC,
17
528 U.S. 377, 392 (2000). “When the Government defends a
regulation on speech as a means to … prevent anticipated
harms, it must do more than simply posit the existence of the
disease sought to be cured.” Colo. Repub. Fed. Campaign
Comm. v. FEC, 518 U.S. 604, 618 (1996) (cleaned up).
Moreover, “[t]he quantum of empirical evidence needed to
satisfy heightened judicial scrutiny of legislative judgments
will vary up or down with the novelty and plausibility of the
justification raised.” Shrink Mo., 528 U.S. at 391; see also
Zimmerman v. City of Austin, 881 F.3d 378, 392–93 (5th Cir.
2018) (discussing cases). We assess the FEC’s asserted
interests in light of these standards.
The FEC maintains that the loan-repayment limit
addresses the heightened risk and appearance of quid pro quo
corruption that results from elected officeholders soliciting
contributions that will be used to repay their personal loans.
The Commission posits that “[m]oney given after the
election … provides the contributor with even more influence
over the candidate since the candidate is benefiting personally
from the contribution.” FEC Statement of Material Facts
(“FEC SMF”) ¶ 73, ECF No. 65 (cleaned up). The Commission
repeatedly characterizes post-election contributions used to
repay candidate loans as going into the candidate’s pocket. The
FEC also points to media reports of debt retirement parties as
giving rise “to at least the appearance of federal candidates
trading dollars for favors in the context of repayment of
candidate loans.” FEC Mot. 33. The Commission maintains
there is a public perception that individuals who contribute to
candidates after an election are likely to expect a political favor
in return.
Despite these assertions, the Commission fails to
demonstrate that quid pro quo corruption or its appearance
18
arises from post-election contributions to retire a candidate’s
personal debt. We first observe that the FEC has not identified
a single case of actual quid pro quo corruption in this context.
This is particularly notable given that many states impose no
restriction on using post-election contributions to repay
candidate loans, 7 and the Commission fails to identify any
problems with quid pro corruption or its appearance in these
states. Cf. Citizens United, 558 U.S. at 357 (finding it
significant that the government failed to claim that
“independent expenditures by for-profit
corporations … corrupted the political process” in the twenty-
six states that did not restrict such expenditures). Here the
FEC’s few state examples involve only concerns that
candidates will be too responsive to the influence of special
7
The Cruz campaign identifies ten states that cap candidate loans or
restrict candidate loan repayment in some fashion. See Cruz Mem.
in Supp. of Mot. for Summ. J. 28 & n.4, ECF No. 61-1. Georgia and
South Carolina cap the repayment of candidate loans with post-
election contributions, similar to BCRA’s loan-repayment limit. See
GA. CODE ANN. § 21-5-41(h); S.C. CODE ANN. § 8-13-1328.
Although Florida permits candidate loans and their repayment with
pre-election contributions, it bans all post-election contributions. See
FLA. STAT. § 106.08(3)(b). Alaska, Rhode Island, Texas, and
Washington cap the repayment of candidate loans with either pre- or
post-election contributions. See ALASKA STAT. § 15.13.078(b)(1);
17 R.I. GEN. LAWS § 17-25-7.4; TEX. ELEC. CODE § 253.042(a);
WASH. REV. CODE § 42.17A.445(3). California, Massachusetts, and
Nebraska place no limit on the repayment of candidate loans but
instead cap the amount that candidates may loan their campaigns.
See CAL. GOV’T CODE § 85307(b); MASS. GEN. LAWS ch. 55, § 7;
NEB. REV. STAT. § 49-1446.04; 4 NEB. ADMIN. CODE ch. 10,
§ 004(02). The Commission does not contest that “only a minority
of states” restrict candidate campaign loans in some way. FEC Mot.
34.
19
interests or concerns about contributions unrelated to the
repayment of candidate loans. See, e.g., FEC SMF ¶¶ 76, 79.
By contrast, in cases that have found a sufficient
anticorruption interest, the record has been robust. In Buckley,
the Court cited “the deeply disturbing examples surfacing after
the 1972 election” as demonstrating that the problem of quid
pro quo corruption was “not an illusory one.” 424 U.S. at 27 &
n.28; see also Buckley v. Valeo, 519 F.2d 821, 838–40 &
nn.26–38 (D.C. Cir. 1975) (en banc) (describing extensive
factual record before Congress). In McConnell v. FEC, the
omnibus challenge to BCRA, the record before the court
consisted of more than 100,000 pages, including “576 pages of
proposed findings of fact” and “the testimony and declarations
of over 200 fact and expert witnesses.” 251 F. Supp. 2d 176,
208–09 (D.D.C. 2003). In Bluman v. FEC, the court pointed to
“public controversy and an extensive investigation by the
Senate Committee on Governmental Affairs,” including
specific examples of foreign governments attempting “to
‘influence U.S. policies and elections through, among other
means, financing election campaigns,’” as justification for
BCRA’s ban on expenditures and contributions by foreign
nationals. 800 F. Supp. 2d 281, 283 (D.D.C. 2011) (quoting S.
REP. NO. 105–67, at 47 (1998)).
A lengthy record may not be sufficient to demonstrate
corruption, but the absence of any record of such corruption
undermines the government’s proffered interest. The FEC
cannot carry its substantial burden by simply asserting that
post-election contributions to repay a candidate’s loans may
come with expectations of a political favor.
In the absence of any evidence of actual corruption, the
FEC turns elsewhere. For instance, the Commission relies
20
heavily on an academic article that concluded “[i]ndebted
politicians … exhibit a heightened sensitivity in their voting
decisions to political contributions received from special
interest groups.” Ovtchinnikov & Valta, Debt in Political
Campaigns 29. The article, however, does not distinguish
between voting pattern changes as a consequence of donor
influence or access and voting pattern changes as part of quid
pro quo corruption. In a representative democracy, mere
influence or access is not the type of quid pro quo corruption
that justifies infringements on political speech. A “generic
favoritism or influence theory … is at odds with standard First
Amendment analyses because it is unbounded and susceptible
to no limiting principle.” McConnell v. FEC, 540 U.S. 93, 296
(2003) (Kennedy, J., concurring in the judgment in part and
dissenting in part). “The line between quid pro quo corruption
and general influence may seem vague at times, but the
distinction must be respected in order to safeguard basic First
Amendment rights.” McCutcheon, 572 U.S. at 209.
The Commission also places great weight on a selective
legislative history of the loan-repayment limit, arguing that
lawmakers intended to “mitigate the heightened risk of quid
pro quo corruption and its appearance resulting from already-
elected officeholders soliciting contributions for their own
personal benefit.” 8 FEC Mot. 6. Even on the doubtful
8
See, e.g., 147 CONG. REC. S2,462 (Mar. 19, 2001) (statement of
Sen. Domenici) (“In fact, it should be a condition to your putting up
your own money, knowing right up front you are not going to get it
back from your constituents under fundraising events that you would
hold and then ask them: How would you like me to vote now that I
am a Senator?”); 147 CONG. REC. S2,541 (Mar. 20, 2001) (statement
of Sen. Hutchison) (“[Candidates] have a constitutional right to try
to buy the office, but they do not have a constitutional right to resell
it.”).
21
proposition that assertions in legislative debates could carry the
government’s burden, these statements from the legislative
history amount to mere suppositions about the appearance of
corruption. Moreover, the Cruz campaign proffers other tidbits
of legislative history, including numerous statements
suggesting that some legislators thought the loan-repayment
limit would protect incumbents from wealthy challengers. 9 The
competing statements in the legislative history of BCRA
establish no clear emphasis on eradicating quid pro quo
corruption as opposed to the impermissible purpose of leveling
the playing field.
In addition, the loan-repayment limit, Section 304 of
BCRA, was enacted at the same time as Section 319, the so-
called “Millionaire’s Amendment,” which the Supreme Court
held unconstitutional in part because it was intended to “level
electoral opportunities for candidates of different personal
wealth.” Davis, 554 U.S. at 741 (cleaned up). While
9
See, e.g., 147 CONG. REC. S2,541 (Mar. 20, 2001) (statement of
Sen. Hutchison) (“Our purpose is to level the playing field so that
one candidate who has millions, if not billions, of dollars to spend on
a campaign will not be at such a significant advantage over another
candidate who does not have such means as to create an unlevel
playing field.”); 147 CONG. REC. S2,465 (Mar. 19, 2001) (statement
of Sen. Sessions) (“It also prohibits wealthy candidates, who incur
personal loans in connection with their campaign that exceed
$250,000, from repaying those loans from any contributions made to
the candidate. … I know there were large contributions in this last
Senate campaign from candidates of $10 million, $60 million, and
other amounts of money that the winning candidates in this body
contributed from their own funds. I tell you, I am glad I didn’t face
a person who could write a check for $60 million, $10 million—or
$5 million, for that matter. If so, I would like to be able to have a
level playing field so I could stay in the ball game.”).
22
Section 304 may serve a different purpose from Section 319,
the text of BCRA, as well as the legislative debates, linked the
two provisions, which suggests that the loan-repayment limit
may also “further the impermissible objective of simply
limiting the amount of money in political campaigns.”
McCutcheon, 572 U.S. at 218. At a minimum, the connection
between the provisions casts further doubt on the government’s
asserted anticorruption interest.
Finally, the FEC relies on media reports and a YouGov
poll, but these similarly fail to establish that restrictions like the
loan-repayment limit serve the purpose of preventing quid pro
quo corruption. The media reports merely hypothesize that
individuals who contribute after the election to help retire a
candidate’s debt might have greater influence with or access to
the candidate. Yet this is not evidence of quid pro quo
corruption, and minimizing influence and access is not a proper
goal for campaign finance regulation. The YouGov poll was
conducted at the FEC’s behest for this litigation to demonstrate
that the loan-repayment limit addresses the appearance of
corruption. The poll first asked respondents whether they were
aware that candidates could loan their campaigns money and
then be paid back with post-election contributions. FEC Mot.
Ex. 16, ECF No. 65-16 (Decl. of Ashley Grosse, Ex. A). In the
poll’s only two follow-up questions, 81 percent of respondents
thought it “very likely” or “likely” that individuals who donate
money to a federal candidate’s campaign after an election
“expect a political favor in return,” and 67 percent of
respondents thought donors would “be more likely to expect
political favors” if there were no limit on repaying a candidate
loan with post-election contributions. Id. The FEC relies on
these responses as evidence that the loan-repayment limit
addresses “at least the appearance of quid pro quo corruption.”
FEC Mot. 32.
23
We disagree. Such generic questions do not get at the
specific problem of quid pro quo corruption the government
asserts this statute combats. On the government’s reasoning,
the poll answers would raise doubts about any contributions to
incumbents (i.e. winning candidates) who use post-election
contributions to retire any type of campaign debt. Even if
contributors who donate to retire a candidate’s debt expect
political favors, that hardly demonstrates that the (now elected)
official is more likely to grant such political favors. Moreover,
the poll did not define the term “political favor,” so the poll’s
responses are not evidence that the public associates such
contributions with quid pro quo corruption, which Congress
may regulate, or simply increased influence and access, which
Congress may not. See McCutcheon, 572 U.S. at 208. Finally,
the poll failed to mention that the individual contribution limit
applies to post-election contributions just as it does to pre-
election contributions. That omission renders the poll an
ineffective measure of public perception of possible corruption
in this context. At most, the poll suggests that some members
of the public distrust or are skeptical about using contributions
to repay candidate loans, but the “tendency to demonstrate
distrust” is insufficient to establish corruption or its
appearance. Nat’l Conserv. PAC, 470 U.S. at 499. We conclude
the FEC fails to demonstrate that the loan-repayment limit
serves an interest in preventing quid pro quo corruption.
The FEC also maintains that the loan-repayment limit
prevents the circumvention of base contribution limits because
without the limit a candidate could keep outstanding loans
from past campaigns, which would allow individuals to stack
up maximum contributions for each election for which the
candidate had open loans. The problem with the FEC’s
position, however, is that contributors are permitted to make
multiple contributions at a single time—they can contribute to
24
retire debt from a previous election (subject to the loan-
repayment limit) and they can contribute to any ongoing
campaign for a future election. Each of these separate per-
election contributions, however, is limited by the base
contribution limit. Nothing about the potential for stacking
circumvents the base limits. What the FEC terms
“circumvention” is in fact a lawful contribution under existing
campaign finance laws.
The government suggests it is dissatisfied with the
possibility of large one-time contributions, which the FEC
treats as a kind of legal loophole. Yet the loan-repayment limit
does little to close the ostensible loophole, because the limit
applies only to a candidate’s personal loans, not to other
campaign debt. Also, the FEC fails to identify a plausible
financial incentive for a candidate to carry significant personal
campaign debt over many years simply to keep open the
possibility of soliciting larger stacked donations in the future.
In sum, the FEC’s position amounts to speculation that
contributions to pay off a candidate’s personal loans carry a
danger of quid pro quo corruption, but the Supreme Court has
“never accepted mere conjecture as adequate to carry a First
Amendment burden.” Shrink Mo., 528 U.S. at 392. The
government has failed to demonstrate that its interest in the
loan-repayment limit is sufficiently important, because the
limit serves no additional purpose in preventing quid pro quo
corruption or the circumvention of base contribution limits.
With little connection to any actual or perceived quid pro quo
corruption interest, the FEC’s asserted rationale boils down to
a general concern about money in politics and campaign
contributions to incumbents—but such general concerns about
influence or access cannot justify government regulation in the
vital area of political speech.
25
2.
Even if the government had shown that the limit was
justified by an important government interest, the loan-
repayment limit is not “closely drawn” to protect expressive
and associational freedoms. McCutcheon, 572 U.S. at 218
(quoting Buckley, 424 U.S. at 25). “In the First Amendment
context, fit matters.” Id. The government’s rationale for the
loan-repayment limit fits about as well as a pair of pandemic
sweatpants. The First Amendment requires a better fit than that.
When assessing fit even under standards short of strict
scrutiny, we “require a fit that is not necessarily perfect, but
reasonable; that represents not necessarily the single best
disposition but one whose scope is in proportion to the interest
served, that employs not necessarily the least restrictive means
but a means narrowly tailored to achieve the desired objective.”
Id. (cleaned up). As part of the inquiry we consider “whether
experience under the present law confirms a serious threat of
abuse,” and whether there are less burdensome alternatives
available to the government in securing its interests. Id. at 219
(quoting FEC v. Colo. Repub. Fed. Campaign Comm., 533
U.S. 431, 457 (2001)).
In arguing for a close fit, the FEC maintains “[t]he Loan
Repayment Limit is tailored to apply in situations when the
strength of the government’s important anti-corruption
interests are at their peak,” because “the candidate will be in a
position to grant political favors to [post-election]
contributors.” FEC Mot. 40. Moreover, the FEC asserts, the
limit is well tailored because it applies only to situations in
which “the candidate or officeholder is directly, personally
benefiting from the contributions,” and it does not prevent
26
campaigns from repaying the loans in full with pre-election
funds. Id. at 41.
Contrary to the government’s assertions, the loan-
repayment limit is not sufficiently tailored to achieve the
objective of preventing quid pro quo corruption or its
appearance. To begin with, the loan-repayment limit is over
inclusive. It applies across the board to winning and losing
candidates, although any purported anticorruption rationale
applies only to winning candidates. The FEC’s primary
defense of the regulation is that post-election contributions
used to retire a candidate’s personal campaign loans are
particularly susceptible to quid pro quo corruption or its
appearance. This justification, however, does not apply to
candidates who lose an election and therefore have no way to
provide improper benefits to contributors who donate to retire
election debt. Losing candidates are less likely to receive post-
election contributions and, in any event, contributions made to
a losing candidate pose essentially no risk of corruption or its
appearance. See Anderson, 356 F.3d at 673 (invalidating a state
cap on candidate loans and explaining that “the risk of quid pro
quo is virtually non-existent where the contribution is made to
a losing candidate who seeks to recoup some of his debt”).
When a campaign finance regulation sweeps in conduct well
beyond the government’s asserted rationale, it does not provide
the close fit required by the First Amendment.
The loan-repayment limit is also substantially
underinclusive as to the government’s asserted interests.
Although “the First Amendment imposes no freestanding
underinclusiveness limitation,” a law’s underinclusiveness can
indicate a poor fit and can raise doubts about whether the law
advances the interests invoked by the government. Williams-
Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015) (cleaned up).
27
Here, aside from the loan-repayment and base contribution
limits, there are no restrictions on post-election contributions
made to retire other types of campaign debt. A person may
contribute to retire any outstanding campaign debt, with the
exception of a candidate’s personal loans over $250,000. The
FEC argues that a candidate who makes a loan to his campaign
that he expects will be repaid is more dependent on outside
contributions than a candidate who simply gives the money to
his campaign. Yet not all candidates can afford to just give
money to their campaigns—and there is nothing inherently
corrupting about receiving campaign contributions after an
election.
The FEC’s concerns regarding post-election contributions
to retire candidate loans seem to apply equally to any
contribution made to an incumbent, because all incumbents are
in a position to grant favors. But Congress does not restrict pre-
election contributions to incumbents except through the base
contribution limit. The government has advanced no reason
why a contribution made to an incumbent before the election
poses no risk of corruption, but the same contribution made
after the election to a winning candidate (now incumbent) and
applied to pre-election debt poses a unique and heightened
concern of quid pro quo corruption.
The government’s fit rationale also cannot explain why
post-election contributions to retire pre-election debt are
permissible up to the $250,000 cap. This cap means that in the
current election cycle, a campaign committee can accept just
over eighty-six maximum contributions after the election to
repay a candidate loan (eighty-six contributions of $2,900
aggregates to $249,400, just shy of the $250,000 ceiling). It is
hardly clear why the eighty-seventh or eighty-eighth
contributor poses a particular danger of quid pro corruption. Cf.
28
McCutcheon, 572 U.S. at 210. Instead, the $250,000 cap
operates to limit or disincentivize the total amount of campaign
expenditure a candidate makes through personal loans.
The loan-repayment limit also imposes an additional
regulatory requirement on top of the existing base limits. The
loan-repayment limit is exactly the sort of “prophylaxis-upon-
prophylaxis approach” that demands “we be particularly
diligent in scrutinizing the law’s fit.” Id. at 221 (cleaned up).
As the D.C. Circuit has explained, “an additional constraint
layered on top of the base limits … separately need[s] to serve
the interest in preventing the appearance or actuality of
corruption.” 10 Holmes v. FEC, 875 F.3d 1153, 1161 (D.C. Cir.
2017) (en banc) (cleaned up). Post-election contributions, like
contributions made before an election, are subject to the base
limits, which serve to prevent the dangers of quid pro quo
corruption. Layered on top of the base limits, the loan-
repayment limit places an additional restriction on pre-election
expenditures and post-election contributions, but the
government has failed to demonstrate that the limit provides
additional protection against quid pro quo corruption or its
appearance.
10
Other circuit courts have similarly interpreted McCutcheon as
requiring the government to make an additional showing to justify
campaign finance restrictions that operate on top of base limits. See,
e.g., Jones v. Jegley, 947 F.3d 1100, 1106 (8th Cir. 2020) (“Just as
in McCutcheon, Arkansas’s failure here to provide any evidence that
its blackout period accomplishes anything more than the $2,700 base
limits alone means that it cannot survive exacting scrutiny.”);
Zimmerman v. City of Austin, 881 F.3d 378, 392 (5th Cir. 2018)
(holding restrictions in addition to the base limit “must be justified
by evidence that the additional limit serves a distinct interest in
preventing corruption that is not already served by the base limit”).
29
The Commission next tries to demonstrate fit by
minimizing the burden of the loan-repayment limit. For
instance, the Commission maintains that the loan-repayment
limit “increase[s] the funds available to campaign
committees,” and so does not “prevent[] campaigns from
‘amassing the resources necessary for effective advocacy.’”
FEC Mot. 41 (quoting Randall v. Sorrell, 548 U.S. 230, 247
(2006) (plurality opinion)). The FEC overreads Randall, which
noted that if a contribution limit prevents a campaign from
amassing the necessary resources, it cannot survive under the
First Amendment. See Randall, 548 U.S. at 248. It does not
logically follow, however, that if a campaign can manage to
amass necessary resources, the regulation survives First
Amendment scrutiny. Preventing candidates from amassing
resources is only one of the reasons a regulation of political
speech may fail under the First Amendment, and therefore it
cannot serve as an independent basis for upholding a
regulation. Cf. Libertarian Nat’l Comm. v. FEC, 924 F.3d 533,
558–59 (D.C. Cir. 2019) (en banc) (Katsas, J., concurring in
part, concurring in the judgment, and dissenting in part).
Moreover, the determination of what resources are “necessary”
for effective speech must be left to individual speakers, not the
FEC.
Finally, the Commission urges this court to defer to
Congress’s judgment that the loan-repayment limit is
necessary for combatting corruption. While we must respect
the legislative choices of Congress acting within its
constitutional sphere, we cannot defer on the question of
whether a particular legislative choice is in fact constitutional.
“We must give weight to attempts by Congress to seek to dispel
either the appearance or the reality of [corruptive] influences.
The remedies enacted by law, however, must comply with the
First Amendment; and it is our law and our tradition that more
30
speech, not less, is the governing rule.” Citizens United, 558
U.S. at 361; see also Schneider v. State, 308 U.S. 147, 161
(1939) (explaining that legislative judgments may be
“insufficient to justify” a restriction that “diminishes the
exercise of rights so vital to the maintenance of democratic
institutions”). Courts cannot rubber stamp congressional
preferences when important First Amendment interests are at
stake.
In sum, we hold that the government failed to meet its
burden of demonstrating that the loan-repayment limit serves
an interest in combatting quid pro quo corruption or its
appearance and that in any event the loan-repayment limit is
insufficiently tailored to meet this objective.
***
When it comes to campaign finance regulation, the foxes
are effectively in charge of the political henhouse, because
elected officials set the rules for future elections. The
Constitution, however, does not leave our liberties to the foxes.
Laws regulating political speech implicate First Amendment
rights essential to a free democracy, and courts have an
independent duty to scrutinize the government’s interest as
well as the means chosen to realize it. To protect “the political
responsiveness at the heart of the democratic process,”
McCutcheon, 572 U.S. at 227, Congress may regulate political
speech only to prevent the specific problem of quid pro quo
corruption. The loan-repayment limit does not serve that
interest, and the government’s arguments to the contrary boil
down to hypothetical concerns about influence and access to
incumbents. Such justifications are not sufficient under the
First Amendment to uphold a statute that burdens political
speech. The loan-repayment limit intrudes on fundamental
31
rights of speech and association without serving a substantial
government interest.
For the foregoing reasons, we hold that the loan-
repayment limit, Section 304 of BCRA, is unconstitutional
because it violates the First Amendment. Thus, the court denies
the Commission’s motion for summary judgment and grants
the Cruz campaign’s motion for summary judgment. A
separate order accompanies this memorandum opinion.