Federal Election Comm'n v. Ted Cruz ( 2022 )

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(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FEDERAL ELECTION COMMISSION v. TED CRUZ FOR
SENATE ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
No. 21–12. Argued January 19, 2022—Decided May 16, 2022
During his 2018 Senate reelection campaign and consistent with federal
law, see 11 CFR §110.10; 52 U. S. C. §30101(9)(A)(i), appellee Ted Cruz
loaned $260,000 to his campaign committee, Ted Cruz for Senate
(Committee). To repay these and other campaign debts, campaigns
may continue to receive contributions after election day. See 11 CFR
§110.1(b)(3)(i). Section 304 of the Bipartisan Campaign Reform Act of
2002 (BCRA) restricts the use of post-election contributions by limiting
the amount that a candidate may be repaid from such funds to
$250,000. 52 U. S. C. §30116(j). Relevant here, the Federal Election
Commission (FEC) has promulgated regulations establishing three
rules to implement that limitation: First, a campaign may repay up to
$250,000 in candidate loans using contributions made “at any time.”
11 CFR §116.12(a). Second, to the extent the loans exceed $250,000, a
campaign may use pre-election funds to repay the portion exceeding
$250,000 only if the repayment occurs “within 20 days of the election.”
§116.11(c)(1). Third, when the 20-day post-election deadline expires,
the campaign must treat any portion above $250,000 as a contribution
to the campaign, precluding later repayment. §116.11(c)(2).
The Committee began repaying Cruz’s loans after the 20-day post-
election window for repaying amounts over $250,000 had closed. It
accordingly repaid Cruz only $250,000, leaving $10,000 of his personal
loans unpaid. Cruz and the Committee filed this action in Federal
District Court, alleging that Section 304 of BCRA violates the First
Amendment and raising challenges to the FEC’s implementing regu-
lation, §116.11. The District Court granted Cruz and his Committee
summary judgment on their constitutional claim, holding that the
loan-repayment limitation burdens political speech without sufficient
2 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Syllabus
justification, and dismissed as moot their challenges to the regulation.
Held:
1. Appellees have standing to challenge the threatened enforcement
of Section 304. Pp. 3–10.
(a) The Government recognizes that the Committee’s present ina-
bility to repay the final $10,000 of Cruz’s loans constitutes an injury
in fact both to Cruz and his Committee. It maintains, however, that
appellees lack Article III standing because these injuries are not trace-
able to the threatened enforcement of Section 304, see Lujan v. De-
fenders of Wildlife, 504 U. S. 555, 560–561. First, the Government ar-
gues that appellees knowingly triggered the application of the loan-
repayment limitation and thus their injuries are traceable to them-
selves, not the Government. This Court has never recognized an ex-
ception to Article III standing’s traceability requirement for injuries
that a party purposely incurs. Moreover, this Court has 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 in-
curred. See Evers v. Dwyer, 358 U. S. 202, 204 (per curiam). Cases
cited by the Government—Clapper v. Amnesty Int’l USA, 568 U. S.
398, and Pennsylvania v. New Jersey, 426 U. S. 660 (per curiam)—do
not alter that conclusion. In contrast to those cases, here the appellees’
injuries are directly inflicted by the FEC’s threatened enforcement of
the provisions they now challenge. That appellees chose to subject
themselves to those provisions does not change the fact that they are
subject to them, and will face genuine legal penalties if they do not
comply. Finally, the Government’s observation that it should not be
blamed for appellees’ injuries because the Committee had a legally
available alternative—i.e., repaying Cruz’s loans in full with pre-elec-
tion funds, within 20 days of the election—misses the point. Demand-
ing that the Committee do so would require it to forgo the exercise of
the First Amendment right the Court must assume it has when as-
sessing standing—the right to repay its campaign debts in full, at any
time. Pp. 3–6.
(b) The Government next argues that although appellees would
have standing to challenge the FEC’s implementing regulation,
§116.11, they do not have standing to challenge Section 304 itself. The
Government contends that the Committee used pre-election funds to
repay the first $250,000, and thus Section 304’s cap on using post-elec-
tion funds to repay a candidate’s loan does not prohibit repayment of
the final $10,000 here. Instead, it is the agency’s regulation—with its
20-day limit—that prevents repayment. Appellees insist that they
used post-election funds—in the form of overlimit contributions to the
2018 campaign that were “redesignated” as contributions to the 2024
Cite as: 596 U. S. ____ (2022) 3
Syllabus
campaign—to repay Cruz’s loans. Ordinarily, it would not matter
whether a plaintiff was challenging the statute’s enforcement or in-
stead the enforcement of a regulation. Here, however, the parties as-
sume that the distinction makes a difference because the subject-mat-
ter jurisdiction of the three-judge District Court is limited to actions
challenging the enforcement of the statute. See BCRA §304(a). Even
under the Government’s account, the present inability of the Commit-
tee to repay and Cruz to recover the final $10,000 is traceable to the
operation of Section 304 itself. An agency’s regulation cannot “operate
independently of” the statute that authorized it. California v. Texas,
593 U. S. ___, ___. Here, the FEC’s 20-day rule was expressly promul-
gated to implement Section 304. Thus, if Section 304 is invalid and
unenforceable, the agency’s 20-day rule is as well, and the remedy ap-
pellees sought in the District Court would redress appellees’ harm by
preventing enforcement of the agency’s 20-day rule. See Lujan, 504
U. S., at 561. In challenging the FEC’s threatened enforcement of the
loan-repayment limitation, through its implementing regulation, ap-
pellees may raise constitutional claims against Section 304, the statu-
tory provision that, through the agency’s regulation, is being enforced.
Cf. Collins v. Yellen, 594 U. S. ___, ___–___. And because they are
challenging “the constitutionality of [a] provision of [BCRA],” §403(a),
jurisdiction was proper in the three-judge District Court. Pp. 6–10.
2. Section 304 of BCRA burdens core political speech without proper
justification. Pp. 10–22.
(a) The loan-repayment limitation abridges First Amendment
rights by burdening candidates who wish to make expenditures on be-
half of their own candidacy through personal loans. Restricting the
sources of funds that campaigns may use to repay candidate loans in-
creases the risk that such loans will not be repaid in full, which, in
turn, deters candidates from loaning money to their campaigns. This
burden is no small matter. Debt is a ubiquitous tool for financing elec-
toral campaigns, especially for new candidates and challengers. By
inhibiting a candidate from using this critical source of campaign fund-
ing, Section 304 raises a barrier to entry—thus abridging political
speech. Pp. 10–13.
(b) The Government has not demonstrated that the loan-repay-
ment limitation furthers a permissible goal. Any law that burdens
First Amendment freedoms, even slightly, must be justified by a per-
missible interest. Pp. 13–22.
(i) The only permissible ground for restricting political speech
recognized by this Court is the prevention of “quid pro quo” corruption
or its appearance. See McCutcheon v. Federal Election Comm’n, 572
U. S. 185, 207. Here, the Government argues that the contributions
at issue raise a heightened risk of corruption because they are used to
4 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Syllabus
repay a candidate’s personal loans. But given that these contributions
are already capped at $2,900 per election in order to prevent corrup-
tion or its appearance, the approach of adding an additional layer of
regulation is a significant indicator that the regulation may not be nec-
essary for the interest it seeks to protect. See id, at 221. Because the
Government is defending a restriction on speech, it must do more than
“simply posit the existence of the disease sought to be cured”; it must
instead point to “record evidence or legislative findings” demonstrat-
ing the need to address a special problem. Colorado Republican Fed-
eral Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 618.
“[M]ere conjecture” is “[in]adequate to carry a First Amendment bur-
den.” McCutcheon, 572 U. S., at 210. Yet the Government is 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. Pp. 13–16.
(ii) In the absence of direct evidence, the Government turns to
a scholarly article, a poll, and statements by Members of Congress to
show that the contributions used to repay candidate loans carry a
heightened risk of at least the appearance of corruption. All of this
evidence, however, concerns the sort of “corruption,” loosely conceived,
that this Court has repeatedly explained is not legitimately regulated
under the First Amendment. Nor is it equivalent to “legislative find-
ings” that demonstrate the need to address a special problem. Pp. 16–
19.
(iii) As a fallback argument, the Government analogizes post-
election contributions used to repay a candidate’s loans to gifts because
they enrich the candidate as opposed to the campaign’s treasury. But
this analogy is meaningful only if the baseline is that the campaign
will default. The record suggests, however, that winning candidates
are commonly repaid in full. For these candidates, post-election con-
tributions bear little resemblance to a gift; they instead restore the
candidate to the status quo ante. As for losing candidates, the Gov-
ernment does not provide any anticorruption rationale to explain why
contributions to those candidates should be restricted. Finally, the
Government argues for deference to Congress’s “legislative judgment”
that Section 304 furthers an anticorruption goal. Given scant evidence
of corruption, deference to Congress would be especially inappropriate
where, as here, the legislative act may have been an effort to “insu-
late[ ] legislators from effective electoral challenge.” Nixon v. Shrink
Missouri Government PAC, 528 U. S. 377, 404 (BREYER, J., concur-
ring). In the end, it remains the role of this Court to decide whether a
particular legislative choice is constitutional. Sable Communications
of Cal., Inc. v. FCC, 492 U. S. 115, 129. Pp. 19–22.
542 F. Supp. 3d 1, affirmed.
Cite as: 596 U. S. ____ (2022) 5
Syllabus
ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS,
ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. KAGAN, J., filed
a dissenting opinion, in which BREYER and SOTOMAYOR, JJ., joined.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–12
_________________
FEDERAL ELECTION COMMISSION, APPELLANT v.
TED CRUZ FOR SENATE, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[May 16, 2022]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
In order to jumpstart a fledgling campaign or finish
strong in a tight race, candidates for federal office often loan
money to their campaign committees. A provision of federal
law regulates the repayment of such loans. Among other
things, it bars campaigns from using more than $250,000 of
funds raised after election day to repay a candidate’s per-
sonal loans. This limit on the use of post-election funds in-
creases the risk that candidate loans over $250,000 will not
be repaid in full, inhibiting candidates from making such
loans in the first place. The question is whether this re-
striction violates the First Amendment rights of candidates
and their campaigns to engage in political speech.
I
A
Candidates for federal office may, consistent with federal
law, use various sources to fund their campaigns. A candi-
date may spend an unlimited amount of his own money in
support of his campaign. See Buckley v. Valeo, 424 U. S. 1,
52–54 (1976) (per curiam). His campaign—a legal entity
2 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
distinct from the candidate himself—may borrow an unlim-
ited amount from third-party lenders or from the candidate
himself. See 11 CFR §110.10 (2017); 52 U. S. C.
§30101(9)(A)(i); see also Buckley, 424 U. S., at 52–54. And
campaigns may, of course, accept contributions directly
from other organizations or from individuals, subject to
monetary limitations. Individual contributions are capped
at $2,900 for the primary and $2,900 for the general elec-
tion. See §§30116(a), (c); 86 Fed. Reg. 7869 (2021). Cam-
paigns may continue to receive contributions after election
day, so long as those contributions go toward repaying cam-
paign debts. See 11 CFR §110.1(b)(3)(i).
Section 304 of the Bipartisan Campaign Reform Act of
2002 (BCRA), 116 Stat. 98, 52 U. S. C. §30116(j), further re-
stricts the use of post-election funds. Under that provision,
a candidate who loans money to his campaign may not be
repaid more than $250,000 of such loans from contributions
made to the campaign after the date of the election. Ibid.To implement that limit, the Federal Election Commission
(FEC) has promulgated regulations establishing three rules
pertinent here: First, a campaign may repay up to $250,000
in candidate loans using contributions made “at any time
before, on, or after the date of the election.” 11 CFR
§116.12(a). Second, to the extent the loans exceed
$250,000, a campaign may use pre-election funds to repay
the portion exceeding $250,000 only if the repayment occurs
“within 20 days of the election.” §116.11(c)(1). And third,
if more than $250,000 remains unpaid when the 20-day
post-election deadline expires, the campaign must treat the
portion above $250,000 as a contribution to the campaign,
precluding later repayment. §116.11(c)(2).
B
Appellee Ted Cruz represents Texas in the United States
Senate. This case arises from his 2018 reelection campaign,
which was, at the time, the most expensive Senate race in
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
history. Before election day, Cruz loaned $260,000 to the
other appellee here, Ted Cruz for Senate (Committee). At
the end of election day, however, the Committee was in the
red by approximately $340,000. App. 285. It eventually
began repaying Cruz’s loans, but by that time the 20-day
post-election window for repaying amounts over $250,000
had closed. See 11 CFR §§116.11(c)(1), (2). The Committee
accordingly repaid Cruz only $250,000, leaving $10,000 of
his personal loans unpaid.
Cruz and the Committee filed this action in the United
States District Court for the District of Columbia, alleging
that Section 304 of BCRA violates the First Amendment.
They also raised challenges to the FEC’s implementing reg-
ulation, 11 CFR §116.11. A three-judge panel was convened
to hear the case. See BCRA §403(a)(1), 116 Stat. 113; see
also 28 U. S. C. §2284.
The three-judge District Court granted Cruz and his
Committee summary judgment on their constitutional
claim, holding that the loan-repayment limitation burdens
political speech without sufficient justification. 542
F. Supp. 3d 1 (2021). The District Court also ordered that
appellees’ challenges to the regulation, previously held in
abeyance, be dismissed as moot. The Government appealed
directly to this Court, as authorized by 28 U. S. C. §1253.
We postponed consideration of our jurisdiction. 594 U. S.
___ (2021).
II
The Constitution limits federal courts to deciding “Cases”
and “Controversies.” Art. III, §2. Among other things, that
limitation requires a plaintiff to have standing. The requi-
site elements of Article III standing are well established: A
plaintiff must show (1) an injury in fact, (2) fairly traceable
to the challenged conduct of the defendant, (3) that is likely
to be redressed by the requested relief. Lujan v. Defenders
of Wildlife, 504 U. S. 555, 560–561 (1992).
4 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
As the Government recognizes, the Committee’s present
inability to repay the final $10,000 of Cruz’s loans consti-
tutes an injury in fact both to Cruz and to his Committee.
See Reply Brief 8. Cruz, of course, suffers a $10,000 pock-
etbook harm. See Czyzewski v. Jevic Holding Corp., 580
U. S. 451, 464 (2017). And the bar on repayment injures
the Committee by preventing it from discharging its obliga-
tion to repay its debt, which may inhibit that form of financ-
ing in the future. The Government maintains, however,
that these injuries are not traceable to the threatened en-
forcement of Section 304, for two reasons: first, because the
inability to repay Cruz’s loans was “self-inflicted,” and sec-
ond, because it is the threatened enforcement of an agency
regulation, not the statute itself, that causes the harm. We
address each argument in turn.
A
First, the Government argues that appellees lack stand-
ing because their injuries were “self-inflicted.” Brief for Ap-
pellant 20. Because appellees knowingly triggered the ap-
plication of the loan-repayment limitation, the Government
says, any resulting injury is in essence traceable to them,
not the Government. The predicate for this argument is
appellees’ stipulation in the District Court that “the sole
and exclusive motivation behind Senator Cruz’s actions in
making the 2018 loan[s] and the [C]ommittee’s actions in
waiting to repay them was to establish the factual basis for
this challenge.” App. 325. At bottom, the Government asks
us to recognize an exception to traceability for injuries that
a party purposely incurs.
We have never recognized a rule of this kind under Arti-
cle III. To the contrary, we have made clear that an injury
resulting from the application or threatened application of
an unlawful enactment remains fairly traceable to such ap-
plication, even if the injury could be described in some sense
as willingly incurred. See Evers v. Dwyer, 358 U. S. 202,
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
204 (1958) (per curiam) (that the plaintiff subjected himself
to discrimination “for the purpose of instituting th[e] litiga-
tion” did not defeat his standing); Havens Realty Corp. v.
Coleman, 455 U. S. 363, 374 (1982) (a “tester” plaintiff pos-
ing as a renter for purposes of housing-discrimination liti-
gation still suffered an injury under Article III).
The cases the Government cites do not alter our conclu-
sion. In Clapper v. Amnesty Int’l USA, 568 U. S. 398 (2013),
for example, the plaintiffs attempted to manufacture stand-
ing by voluntarily taking costly and burdensome measures
that they said were necessary to protect the confidentiality
of their communications in light of the Government surveil-
lance policy they sought to challenge. Id., at 402. Their
problem, however, was that they could not show that they
had been or were likely to be subjected to that policy in any
event. Id., at 416. Likewise, in Pennsylvania v. New Jersey,
426 U. S. 660 (1976) (per curiam), we held that the unilat-
eral decisions by a group of States to reimburse their resi-
dents for taxes levied by other States was not a basis to at-
tack the legality of those taxes. Nothing in the challenged
taxes required the plaintiff States to offer reimbursements;
accordingly, the financial injury those States suffered was
due to their own independent response to taxes levied on
others. Id., at 664. Here, by contrast, the appellees’ inju-
ries are directly inflicted by the FEC’s threatened enforce-
ment of the provisions they now challenge. That appellees
chose to subject themselves to those provisions does not
change the fact that they are subject to them, and will face
genuine legal penalties if they do not comply. See 52
U. S. C. §30109(a)(5); 11 CFR §111.24.
One final point bears mentioning. The Government
maintains that it should not be blamed for appellees’ inju-
ries because it provided the Committee with a legally avail-
able “alternative” that would have avoided any liability—
repaying Cruz’s loans in full with pre-election funds, within
6 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
20 days of the election. But even if such funds were availa-
ble, the Government’s argument largely misses the point.
For standing purposes, we accept as valid the merits of ap-
pellees’ legal claims, so we must assume that the loan-
repayment limitation—including the 20-day rule—uncon-
stitutionally burdens speech. See Warth v. Seldin, 422
U. S. 490, 500 (1975) (“standing in no way depends on the
merits of the plaintiff ’s contention that particular conduct
is illegal”). Demanding that the Committee comply with
the Government’s “alternative” would therefore require it
to forgo the exercise of a First Amendment right we must
assume it has—the right to repay its campaign debts in full,
at any time. And this would require the Committee to sub-
ject itself to the very framework it says unconstitutionally
burdens its speech. Such a principle finds no support in our
standing jurisprudence. See, e.g., Susan B. Anthony List v.
Driehaus, 573 U. S. 149, 158–159 (2014).
B
The Government next asserts that although appellees
would have standing to challenge the FEC’s implementing
regulation, 11 CFR §116.11, they do not have standing to
challenge Section 304 itself. As a reminder, Section 304
prohibits the use of post-election funds to repay a candi-
date’s personal loans; it does not restrict the use of funds
raised before the election. See 52 U. S. C. §30116(j). That
restriction comes instead from Section 304’s implementing
regulation, 11 CFR §116.11. This regulation provides that
neither pre-election nor post-election funds may be used to
repay candidate loans above $250,000 outstanding 20 days
after the election. §§116.11(c)(1)–(2). Such amounts must
instead be treated as contributions to the campaign, bar-
ring their repayment.
Bearing that in mind, the Government contends that the
record before the District Court reveals that the Committee
used funds raised before the election to repay the first
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
$250,000 of Cruz’s loans. For support, it naturally points
to appellees’ stipulation that “none of the $250,000 of the
loan that was repaid was from contributions raised after
the election.” App. 329. Thus, the Government says, the
Committee has not yet reached the cap in Section 304 on
the use of post-election funds, and can still repay the re-
maining balance without running afoul of that statutory re-
striction. It is instead the agency’s regulation—with its 20-
day limit—that prevents repayment of the final $10,000.
This matters, the Government insists, because “[s]tanding
is not dispensed in gross,” and plaintiffs must establish
standing separately for each claim that they press and each
form of relief that they seek. Brief for Appellant 17 (quoting
TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip
op., at 15)). A challenge to the regulation, the Government
argues, is separate from a challenge to the statute that au-
thorized it.
For their part, appellees insist that the record, properly
interpreted, shows that the Committee used post-election
funds to repay Cruz. During the period between election
day and when the Committee repaid Cruz’s loans, the Com-
mittee received more than $250,000 in “redesignated” con-
tributions to Cruz’s 2024 campaign. Those contributions
came from individuals who donated to the 2018 election in
amounts exceeding their base limit and who, subsequent to
the election, redesignated the overlimit amount to the 2024
campaign. See 11 CFR §110.1(b)(5). Such funds, appellees
say, qualify as “post-election contributions” for purposes of
Section 304, and may have been used to repay the first
$250,000 of Cruz’s loans. See §116.12(a).
These arguments have an Alice in Wonderland air about
them, with the Government arguing that appellees would
not violate the statute by repaying Cruz, and the appellees
arguing that they would. But this case has unfolded in an
unusual way. After all, Cruz and the Committee likely
8 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
would have had standing to bring a pre-enforcement chal-
lenge (as they do now) to Section 304 in a much easier man-
ner—by simply alleging and credibly demonstrating that
Cruz wished to loan his campaign an amount larger than
$250,000, but would not do so only because the loan-
repayment limitation made it unlikely that such amount
would be repaid. See Susan B. Anthony List, 573 U. S., at
158–159. In addition, it ordinarily would not matter
whether a plaintiff was challenging the statute’s enforce-
ment or instead the enforcement of a regulation and, in do-
ing so, raising arguments about the validity of the statute
that authorized the regulation. Cf. Collins v. Yellen, 594
U. S. ___, ___–___ (2021) (slip op., at 18–19). The parties
here, however, assume that the distinction makes a differ-
ence because the subject-matter jurisdiction of the three-
judge District Court is limited to actions challenging the en-
forcement of the statute. See BCRA §403(a) (authorizing a
three-judge court to hear any “action . . . brought for declar-
atory or injunctive relief to challenge the constitutionality
of any provision of this Act or any amendment made by this
Act”).
It seems to us that the Government is likely correct that
appellees have not shown that they exhausted Section 304’s
cap on the use of post-election funds. The loan-repayment
limitation applies to contributions “made” after the date of
the election. 52 U. S. C. §30116(j). And a contribution is
“considered to be made when the contributor relinquishes
control” over it, which occurs when the contribution is “de-
livered” to the Committee or the candidate. 11 CFR
§110.1(b)(6). The redesignated contributions on which ap-
pellees now rely, however, involve funds that were deliv-
ered to the Committee before the 2018 election. And those
funds have remained under the Committee’s control from
that date, even if they were later redesignated to a different
campaign.
But we need not go further down this rabbit hole. Even
Cite as: 596 U. S. ____ (2022) 9
Opinion of the Court
under the Government’s account, appellees have standing
to challenge the threatened enforcement of Section 304.
The present inability of the Committee to repay and Cruz
to recover the final $10,000 Cruz loaned his campaign is,
even if brought about by the agency’s threatened enforce-
ment of its regulation, traceable to the operation of Section
304 itself. An agency, after all, “literally has no power to
act”—including under its regulations—unless and until
Congress authorizes it to do so by statute. Louisiana Pub.
Serv. Comm’n v. FCC, 476 U. S. 355, 374 (1986); see also
FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120,
161 (2000). An agency’s regulation cannot “operate inde-
pendently of ” the statute that authorized it. California v.
Texas, 593 U. S. ___, ___ (2021) (slip op., at 15). And here,
the FEC’s 20-day rule was expressly promulgated to imple-
ment Section 304. See 68 Fed. Reg. 3973 (2003). Indeed,
the Government admitted at oral argument that it could
find no other basis to authorize enforcement of this regula-
tion, Tr. of Oral Arg. 5, and “concede[d]” that “the most
likely result, if the statute were declared invalid, is that the
regulation would cease to be on the books or would cease to
be enforceable,” ibid. Thus, if Section 304 is invalid and
unenforceable—as Cruz and the Committee contend—the
agency’s 20-day rule is as well. And the remedy appellees
sought in the District Court—an order enjoining the Gov-
ernment from taking any action to enforce the loan-
repayment limitation, App. 27—would redress appellees’
harm by preventing enforcement of the agency’s 20-day
rule. See Lujan, 504 U. S., at 561.
Contrary to the Government’s suggestion, the foregoing
analysis does not call into question the principle that “a
plaintiff injured by one law does not thereby acquire stand-
ing to challenge a different law.” Brief for Appellant 17. It
is true that a litigant cannot, “by virtue of his standing to
challenge one government action, challenge other govern-
mental actions that did not injure him.” DaimlerChrysler
10 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
Corp. v. Cuno, 547 U. S. 332, 353, n. 5 (2006). Here, how-
ever, appellees seek to challenge the one Government action
that causes their harm: the FEC’s threatened enforcement
of the loan-repayment limitation, through its implementing
regulation. In doing so, they may raise constitutional
claims against Section 304, the statutory provision that,
through the agency’s regulation, is being enforced. Cf. Col-
lins, 594 U. S., at ___–___ (slip op., at 18–19). Even on the
Government’s version of the facts, then, we are satisfied
that appellees have standing to challenge the threatened
enforcement of Section 304. And because they are challeng-
ing “the constitutionality of [a] provision of [BCRA],”
§403(a), jurisdiction was proper in the three-judge District
Court. We thus proceed to the merits.
III
A
The First Amendment “has its fullest and most urgent
application precisely to the conduct of campaigns for politi-
cal office.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 272
(1971). It safeguards the ability of a candidate to use per-
sonal funds to finance campaign speech, protecting his free-
dom “to speak without legislative limit on behalf of his own
candidacy.” Buckley, 424 U. S., at 54. This broad protec-
tion, we have explained, “reflects our profound national
commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open.” Id., at 14(internal quotation marks omitted).
The Government seems to agree with appellees that the
loan-repayment limitation abridges First Amendment
rights, at least to some extent, see Brief for Appellant 27–
32, and we reach the same conclusion. This provision, by
design and effect, burdens candidates who wish to make ex-
penditures on behalf of their own candidacy through per-
sonal loans. See 52 U. S. C. §30101(9)(A)(i) (defining “ex-
penditure” to include loans); see also Buckley, 424 U. S., at
Cite as: 596 U. S. ____ (2022) 11
Opinion of the Court
52. By restricting the sources of funds that campaigns may
use to repay candidate loans, Section 304 increases the risk
that such loans will not be repaid. That in turn inhibits
candidates from loaning money to their campaigns in the
first place, burdening core speech.
The data bear out the deterrent effect of Section 304. Af-
ter BCRA was passed, there appeared a “clear clustering of
[candidate] loans right at the $250,000 threshold.” A.
Ovtchinnikov & P. Valta, Debt in Political Campaigns 26
(2020), Record 65–1 (Ovtchinnikov, Debt); see also Brief for
United States Senator Roy Blunt et al. as Amici Curiae 6–
7. There was no such clustering before the loan-repayment
limitation went into effect. The Government’s evidence in
the District Court, moreover, reflects that the percentage of
loans by Senate candidates for exactly $250,000 has in-
creased tenfold since BCRA was passed. See App. 312–313.
Section 304, then, has altered “the propensity of many pol-
iticians to make large loans.” Ovtchinnikov, Debt 26; see
also Brief for Protect the First Foundation as Amicus Cu-
riae 10–11. In doing so, it has predictably restricted a can-
didate’s speech on behalf of his own candidacy. See Buck-
ley, 424 U. S., at 54.
Quite apart from this record evidence, the burden on
First Amendment expression is “evident and inherent” in
the choice that candidates and their campaigns must con-
front. Arizona Free Enterprise Club’s Freedom Club PAC v.
Bennett, 564 U. S. 721, 745 (2011); see also id., at 746 (“we
do not need empirical evidence to determinate that the law
at issue is burdensome”); Davis v. Federal Election Comm’n,
554 U. S. 724, 738–740 (2008) (requiring no empirical evi-
dence of a burden). Although Section 304 “does not impose
a cap on a candidate’s expenditure of personal funds, it im-
poses an unprecedented penalty on any candidate who ro-
bustly exercises that First Amendment right.” Id., at 738–
739. That penalty, of course, is the significant risk that a
12 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
candidate will not be repaid if he chooses to loan his cam-
paign 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 politi-
cal 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 conse-
quence of a statutorily imposed choice.” Id., at 739.
The “drag,” moreover, is no small matter. Debt is a ubiq-
uitous tool for financing electoral campaigns. The raw dol-
lar amount of loans made to campaigns in any one election
cycle is in the nine figures, “significantly exceeding” the
amount of independent expenditures. Ovtchinnikov, Debt
11. And personal loans from candidates themselves consti-
tute the bulk of this financing. See Brief for Appellant 35
(“more than 90% of campaign debt consists of candidate
loans”). In fact, candidates who self-fund usually do so us-
ing personal loans. See J. Steen, Self-Financed Candidates
in Congressional Elections 21 (2006).
The ability to lend money to a campaign is especially im-
portant for new candidates and challengers. As a practical
matter, personal loans will sometimes be the only way for
an unknown challenger with limited connections to front-
load campaign spending. See G. Jacobson, Money in Con-
gressional Elections 97–101 (1980). And early spending—
and thus early expression—is critical to a newcomer’s
success. See Steen, Self-Financed Candidates in Congres-
sional Elections, at 35, 171. A large personal loan also may
be a useful tool to signal that the political outsider is confi-
dent enough in his campaign to have skin in the game, at-
tracting the attention of donors and voters alike. See R.
Biersack, P. Herrnson, C. Wilcox, Seeds for Success: Early
Money in Congressional Elections, 18 Leg. Studies Q. 535,
537 (1993); see also Brief for United States Senator Roy
Blunt et al. as Amici Curiae 13. By inhibiting a candidate
Cite as: 596 U. S. ____ (2022) 13
Opinion of the Court
from using this critical source of campaign funding, how-
ever, Section 304 raises a barrier to entry—thus abridging
political speech.
The dissent cannot and does not claim that Section 304
imposes no burden on candidate speech. See post, at 5
(opinion of KAGAN, J.) (“every contribution regulation has
some kind of indirect effect on electoral speech”). The dis-
sent instead dismisses that burden as minor and insignifi-
cant. Post, at 4–6. As just explained, the extent of the bur-
den may vary depending on the circumstances of a
particular candidate and particular election. But there is
no doubt that the law does burden First Amendment elec-
toral speech, and any such law must at least be justified by
a permissible interest. See McCutcheon v. Federal Election
Comm’n, 572 U. S. 185, 210 (2014) (plurality opinion)
(“When the Government restricts speech, the Government
bears the burden of proving the constitutionality of its ac-
tions.”).
B
With those First Amendment costs in mind, we turn to
whether the loan-repayment limitation is justified. The
parties debate whether strict or “closely drawn” scrutiny
should apply in answering that question. Buckley, 424
U. S., at 25. We need not resolve this dispute because, un-
der either standard, the Government must prove at the out-
set that it is in fact pursuing a legitimate objective. See
McCutcheon, 572 U. S., at 210. It has not done so here.
1
This Court has recognized only one permissible ground
for restricting political speech: the prevention of “quid pro
quo” corruption or its appearance. See id., at 207; see also
Federal Election Comm’n v. National Conservative Political
Action Comm., 470 U. S. 480, 497 (1985). We have consist-
ently rejected attempts to restrict campaign speech based
14 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
on other legislative aims. For example, we have denied at-
tempts to reduce the amount of money in politics, see
McCutcheon, 572 U. S., at 191, to level electoral opportuni-
ties by equalizing candidate resources, see Bennett, 564
U. S., at 749–750, and to limit the general influence a con-
tributor may have over an elected official, see Citizens
United v. Federal Election Comm’n, 558 U. S. 310, 359–360
(2010). However well intentioned such proposals may be,
the First Amendment—as this Court has repeatedly em-
phasized—prohibits such attempts to tamper with the
“right of citizens to choose who shall govern them.”
McCutcheon, 572 U. S., at 227; see also Davis, 554 U. S., at
742; Bennett, 564 U. S., at 750.
The Government argues that the contributions at issue
raise a heightened risk of corruption because of the use to
which they are put: repaying a candidate’s personal loans.
It also maintains that post-election contributions are par-
ticularly troubling because the contributor will know—not
merely hope—that the recipient, having prevailed, will be
in a position to do him some good.
We greet the assertion of an anticorruption interest here
with a measure of skepticism, for the loan-repayment limi-
tation is yet another in a long line of “prophylaxis-upon-
prophylaxis approach[es]” to regulating campaign finance.
McCutcheon, 572 U. S., at 221 (quoting Federal Election
Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 479
(2007) (opinion of ROBERTS, C. J.)). Individual contribu-
tions to candidates for federal office, including those made
after the candidate has won the election, are already regu-
lated in order to prevent corruption or its appearance. Such
contributions are capped at $2,900 per election, see 86 Fed.
Reg. 7869, and nontrivial contributions must be publicly
disclosed, see 52 U. S. C. §§30104(b)(3)(A), (c)(1). The dis-
sent’s dire predictions about the impact of today’s decision
elide the fact that the contributions at issue remain subject
Cite as: 596 U. S. ____ (2022) 15
Opinion of the Court
to these requirements. See post, at 3, 14–15. And the re-
quirements are themselves prophylactic measures, given
that “few if any contributions to candidates will involve
quid pro quo arrangements.” Citizens United, 558 U. S., at
357. Such a prophylaxis-upon-prophylaxis approach, we
have explained, is a significant indicator that the regulation
may not be necessary for the interest it seeks to protect. See
McCutcheon, 572 U. S., at 221; see also Bennett, 564 U. S.,
at 752 (“In the face of [the State’s] contribution limits [and]
strict disclosure requirements . . . it is hard to imagine what
marginal corruption deterrence could be generated by [an
additional measure].”).
There is no cause for a different conclusion here. Because
the Government is defending a restriction on speech as nec-
essary to prevent an anticipated harm, it must do more
than “simply posit the existence of the disease sought to be
cured.” Colorado Republican Federal Campaign Comm. v.
Federal Election Comm’n, 518 U. S. 604, 618 (1996). It
must instead point to “record evidence or legislative find-
ings” demonstrating the need to address a special problem.
Ibid. We have “never accepted mere conjecture as adequate
to carry a First Amendment burden.” McCutcheon, 572
U. S., at 210 (quoting Nixon v. Shrink Missouri Government
PAC, 528 U. S. 377, 392 (2000)).
Yet the Government is 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 con-
tributions to repay candidate loans. Cf. Brief for Campaign
Legal Center et al. as Amici Curiae 17–18 (citing the 10
States that do impose such a prohibition). Our previous
cases have found the absence of such evidence significant.
See Citizens United, 558 U. S., at 357 (the Government did
not claim that the political process was corrupted in the 26
States that allowed unrestricted independent expenditures
by corporations); McCutcheon, 572 U. S., at 209, n. 7 (the
Government presented no evidence of corruption in the 30
16 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
States that did not impose aggregate limits on individual
contributions).
The Government instead puts forward a handful of media
reports and anecdotes that it says illustrate the special
risks associated with repaying candidate loans after an
election. But as the District Court found, those 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.” 542
F. Supp. 3d, at 15. That is not the type of quid pro quo cor-
ruption the Government may target consistent with the
First Amendment. See McCutcheon, 572 U. S., at 207–208.
The dissent at points shrugs off this distinction, see post,
at 2, 12, n. 3, 13, but our cases make clear that “the Gov-
ernment may not seek to limit the appearance of mere in-
fluence or access.” McCutcheon, 572 U. S., at 208. As we
have explained, influence and access “embody a central fea-
ture of democracy—that constituents support candidates
who share their beliefs and interests, and candidates who
are elected can be expected to be responsive to those con-
cerns.” Id., at 192.
To be sure, the “line between quid pro quo corruption and
general influence may seem vague at times, but the distinc-
tion must be respected in order to safeguard basic First
Amendment rights.” Id., at 209. And in drawing that line,
“the First Amendment requires us to err on the side of pro-
tecting political speech rather than suppressing it.” Ibid.
(quoting Wisconsin Right to Life, 551 U. S., at 457 (opinion
of ROBERTS, C. J.)).
2
In the absence of direct evidence, the Government turns
elsewhere. It contends that a scholarly article, a poll, and
statements by Members of Congress show that these con-
tributions carry a heightened risk of at least the appear-
Cite as: 596 U. S. ____ (2022) 17
Opinion of the Court
ance of corruption. Essentially all the Government’s evi-
dence, however, concerns the sort of “corruption,” loosely
conceived, that we have repeatedly explained is not legiti-
mately regulated under the First Amendment.
The academic article—cited for various propositions by
both sides—concludes that “indebted politicians” are “more
likely to switch their votes” if they receive contributions
from the banking or insurance industries. Ovtchinnikov,
Debt 31. But the authors explicitly note that they cannot
distinguish between voting pattern changes traceable to le-
gitimate donor influence or access, and voting pattern
changes as part of an illicit quid pro quo. See A. Ovtchinni-
kov & P. Valta, Self-Funding of Political Campaigns, Man-
agement Science, Articles in Advance 18 (April 7, 2022)
(Ovtchinnikov, Self-Funding). As noted, our precedents de-
mand adherence to that distinction. See, e.g., McCutcheon,
572 U. S., at 209. The authors also state that their analysis
is merely a “first step” in understanding whether politi-
cians’ self-funding decisions impact voting behavior, be-
cause they cannot “pin down a causal link” yet. Ovtchinni-
kov, Self-Funding 21.
The online poll the Government asks us to consider
similarly misses the mark. The poll, conducted at the Gov-
ernment’s behest for this litigation, reports that most re-
spondents thought it “very likely” or “likely” that a person
who “donate[s] money to a candidate’s campaign after the
election expect[s] a political favor in return.” App. 351–352.
But it failed to ask whether those same respondents
thought it likely that donors who contribute to a campaign
before the election also are likely to expect political favors
in return. Nor did the poll mention that the individual base
limits still apply to such contributions. And it failed to de-
fine the term “political favor,” leaving unclear the critical
issue whether the respondents associated such contribu-
tions with the direct exchange of money for official acts,
18 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
which Congress may regulate, or simply increased influ-
ence and access, which Congress may not.
Finally, the Government places great weight on state-
ments made by certain Members of Congress during de-
bates that preceded the enactment of BCRA. One Senator,
for example, remarked that without the loan-repayment
limitation, a winning candidate who loaned money to his
campaign could “get it back from [his] constituents [at]
fundraising events” where he could ask, “How would you
like me to vote now that I am a Senator?” 147 Cong. Rec.
S2462 (March 19, 2001) (remarks of Sen. Domenici). An-
other stated that candidates “have a constitutional right to
try to buy the office, but they do not have a constitutional
right to resell it.” 147 Cong. Rec. S2541 (March 20, 2001)
(remarks of Sen. Hutchison). Nothing these legislators
said, however, constitutes actual evidence that the loan-re-
payment limitation was necessary to prevent quid pro quo
corruption or its appearance. And a few stray floor state-
ments are not the same as “legislative findings” that might
suggest a special problem to be addressed. Colorado Re-
publican Federal Campaign Comm., 518 U. S., at 618.
All the above is pretty meager, given that we are consid-
ering restrictions on “the most fundamental First Amend-
ment activities”—the right of candidates for political office
to make their case to the American people. Buckley, 434
U. S., at 14. In any event, the legislative record helps ap-
pellees just as much as the Government, given that some
Senators evidently viewed the limit as designed to protect
incumbents like themselves from wealthy challengers. See
147 Cong. Rec. S2465 (March 19, 2001) (remarks of Sen.
Sessions) (“[Section 304] prohibits wealthy candidates, who
incur personal loans in connection with their campaign that
exceed $250,000, from repaying those loans from any con-
tributions made to the candidate. . . . I am glad I didn’t face
a person who could write a check for $60 million, $10 mil-
lion—or $5 million, for that matter. If so, I would like to be
Cite as: 596 U. S. ____ (2022) 19
Opinion of the Court
able to have a level playing field so I could stay in the ball
game.”); see also 147 Cong. Rec. S2541 (March 20, 2001)
(remarks of Sen. Hutchison) (“Our purpose is to level the
playing field.”).
That the limit may have been designed to protect incum-
bents should come as no surprise. Section 304 was enacted
as part of the “Millionaire’s Amendment” to BCRA, de-
signed to hobble wealthy candidates mounting self-financed
campaigns. See Davis, 554 U. S., at 739. And it was de-
bated together with another provision we have already held
unconstitutional, in part because it pursued the same im-
permissible goal of “level[ing] electoral opportunities for
candidates of different personal wealth.” Id., at 741. The
connection between these two provisions casts further
doubt on the anticorruption interest the Government now
asserts in this case.
3
Perhaps to make up for its evidentiary shortcomings, the
Government falls back on what it calls a “common sense”
analogy: Post-election contributions used to repay a candi-
date’s loans are akin to a “gift” because they “add to the
candidate’s personal wealth” as opposed to the campaign’s
treasury. Brief for Appellant 33. The risk of corruption is
thus greater, the Government argues, because the donor is
lining the pockets of a legislator or legislator-elect.
The dissent at multiple points makes the same argument,
contending that contributions that go toward repaying a
candidate’s loan “enrich the candidate personally,” allowing
him to “buy a car or make tuition payments or join a country
club.” Post, at 7, 14; see also post, at 2, 3, 8, 13. But this
forgets that we are talking about repayment of a loan, not
a gift. If the candidate did not have the money to buy a car
before he made a loan to his campaign, repayment of the
loan would not change that in any way.
On top of that, contributions that go toward retiring a
20 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
candidate’s debt could only arguably enrich the candidate if
the candidate does not otherwise expect to be repaid. In
other words, the Government’s gift comparison is meaning-
ful only if the baseline is that the campaign will default.
The Government, however, provides no reason to believe
that most or even many winning candidates—the only can-
didates with whom its anticorruption interest is con-
cerned—expect not to be repaid by their campaigns. To the
contrary, the Government has recognized throughout this
litigation that winning candidates are commonly repaid in
full. See App. 31–32 (citing the former FEC Commis-
sioner’s statement that “only winners have an easy time
dealing with debt”); id., at 317 (same); see also Ovtchinni-
kov, Self-Funding 11 (concluding that, even with BCRA’s
limitations on loan repayment in place, two out of three
winning campaigns were able to repay a candidate’s loans
in full). For such a candidate, then, post-election contribu-
tions bear little resemblance to a gift, because there is less
of a chance that his campaign will default. Such contribu-
tions instead restore the candidate to the status quo ante,
a position to which he legitimately expected to return. As
for losing candidates, they are of course in no position to
grant official favors, and the Government does not provide
any anticorruption rationale to explain why post-election
contributions to those candidates should be restricted. See
Brief for Appellant 45–46.
The analogy also proves too much. By the Government’s
logic, post-election contributions to retire candidate loans
are little different from gifts given directly to the candidate.
But that logic is belied by how the Government treats the
two categories of purported “gifts.” On the one hand, fed-
eral law flatly prohibits candidates from using campaign
contributions for personal purposes. See 52 U. S. C.
§30114(b)(2). And it forbids Senators from accepting gifts
worth $250 or more. See 2 U. S. C. §4725(a)(1). By con-
trast, the postulated “gift-by-loan-repayment” limits are
Cite as: 596 U. S. ____ (2022) 21
Opinion of the Court
simply the individual contribution limits, which are now
more than ten times higher than the gift limit: $2,900 per
election. And Section 304 allows over 86 such “gifts” before
a campaign hits the Act’s $250,000 cap. Either the Govern-
ment is openly tolerating a significant number of “gifts” far
more generous than what it would normally think fit to al-
low, or post-election contributions that go toward retiring
campaign debt are in no real sense “gifts” to a candidate.
We find the latter answer more persuasive.
As a final argument, the Government claims that if the
matter is otherwise in doubt, we should defer to Congress’s
“legislative judgment” that Section 304 furthers an anticor-
ruption goal. Brief for Appellant 39; see also post, at 8
(KAGAN, J., dissenting) (also arguing that we have no “rea-
son to second-guess Congress’s experience-based judg-
ment”). Such deference, the Government contends, is
grounded “in part on the understanding that Congress ‘is
far better equipped than the judiciary to amass and evalu-
ate the vast amounts of data bearing upon legislative ques-
tions.’ ” Brief for Appellant 40 (quoting Turner Broadcast-
ing System, Inc. v. FCC, 520 U. S. 180, 195 (1997) (some
internal quotation marks omitted)). But as explained, the
evidence here is scant, and Congress’s judgment is hardly
based on “vast amounts of data.” Id., at 195. Moreover,
deference to Congress would be especially inappropriate
where, as here, the legislative act may have been an effort
to “insulate[ ] legislators from effective electoral challenge.”
Shrink Missouri Government PAC, 528 U. S., at 404(BREYER, J., concurring); see also Randall v. Sorrell, 548
U. S. 230, 248–249 (2006) (plurality opinion).
In the end, it remains our role to decide whether a partic-
ular legislative choice is constitutional. See Sable Commu-
nications of Cal., Inc. v. FCC, 492 U. S. 115, 129 (1989); see
also Randall, 548 U. S., at 248–249 (stressing need for “the
exercise of independent judicial judgment” in case raising
concern that “contribution limits that are too low [may]
22 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
Opinion of the Court
harm the electoral process by preventing challengers from
mounting effective campaigns against incumbent office-
holders”). And here the Government has not shown that
Section 304 furthers a permissible anticorruption goal, ra-
ther than the impermissible objective of simply limiting the
amount of money in politics.
* * *
For the reasons set forth, we conclude that Cruz and the
Committee have standing to challenge the threatened en-
forcement of Section 304 of BCRA. We also conclude that
this provision burdens core political speech without proper
justification. The judgment of the District Court is af-
firmed.
It is so ordered.
Cite as: 596 U. S. ____ (2022) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–12
_________________
FEDERAL ELECTION COMMISSION, APPELLANT v.
TED CRUZ FOR SENATE, ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
[May 16, 2022]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
A candidate for public office extends a $500,000 loan to
his campaign organization, hoping to recoup the amount
from benefactors’ post-election contributions. Once elected,
he devotes himself assiduously to recovering the money; his
personal bank account, after all, now has a gaping half-mil-
lion-dollar hole. The politician solicits donations from
wealthy individuals and corporate lobbyists, making clear
that the money they give will go straight from the campaign
to him, as repayment for his loan. He is deeply grateful to
those who help, as they know he will be—more grateful
than for ordinary campaign contributions (which do not in-
crease his personal wealth). And as they paid him, so he
will pay them. In the coming months and years, they re-
ceive government benefits—maybe favorable legislation,
maybe prized appointments, maybe lucrative contracts.
The politician is happy; the donors are happy. The only
loser is the public. It inevitably suffers from government
corruption.
The campaign finance measure at issue here has for two
decades checked the crooked exchanges just described. The
provision, Section 304 of the Bipartisan Campaign Reform
Act of 2002, prohibited a candidate from using post-election
donations to repay loans exceeding $250,000 that he made
2 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
to his campaign. The theory of the legislation is easy to
grasp. Political contributions that will line a candidate’s
own pockets, given after his election to office, pose a special
danger of corruption. The candidate has a more-than-usual
interest in obtaining the money (to replenish his personal
finances), and is now in a position to give something in re-
turn. The donors well understand his situation, and are
eager to take advantage of it. In short, everyone’s incen-
tives are stacked to enhance the risk of dirty dealing. At
the very least—even if an illicit exchange does not occur—
the public will predictably perceive corruption in post-elec-
tion payments directly enriching an officeholder. Congress
enacted Section 304 to protect against those harms.
In striking down the law today, the Court greenlights all
the sordid bargains Congress thought right to stop. The
theory of the decision (unlike of the statute) is hard to
fathom. The majority says that Section 304 violates the
candidate’s First Amendment rights by interfering with his
ability to “self-fund” his campaign. Ante, at 12. But the
candidate can in fact self-fund all he likes. The law impedes
only his ability to use other people’s money to finance his
campaign—much as standard (and permissible) contribu-
tion limits do. And even that third-party restriction is a
modest one, applying only to post- (not pre-) election dona-
tions to repay sizable (not small) loans. So the majority
overstates the First Amendment burdens Section 304 im-
poses. At the same time, the majority understates the anti-
corruption values Section 304 serves. In the majority’s
view, there is “scant” danger here of quid pro quo corrup-
tion; loan repayments produce only the “sort of ‘corruption’ ”
in which contributors wield “greater influence” over candi-
dates than they otherwise would. Ante, at 16–17, 21. As-
sume away all objections to that distinction, which even the
majority concedes is “vague,” ante, at 16; for better or worse,
it underlies this Court’s recent campaign finance decisions.
Cite as: 596 U. S. ____ (2022) 3
KAGAN, J., dissenting
Still, the conduct targeted by Section 304 threatens, if any-
thing does, both corruption and the appearance of corrup-
tion of the quid pro quo kind. That is because the regulated
transactions—as Members of Congress well knew from ex-
perience—personally enrich those already elected to office.
In allowing those payments to go forward unrestrained, to-
day’s decision can only bring this country’s political system
into further disrepute.
I
In assessing a law’s burden on speech, this Court’s deci-
sions all distinguish between restricting expenditures and
restricting contributions. See, e.g., Buckley v. Valeo, 424
U. S. 1, 19–23 (1976) (per curiam). (The majority glosses
over that core distinction, for reasons that will soon become
clear.) According to settled precedent, expenditure re-
strictions—caps on a campaign’s or candidate’s electoral
spending—impose the greatest burdens on expression. The
First Amendment, as the majority notes, “has its fullest and
most urgent application” when a “legislative limit” prevents
a candidate from “us[ing] personal funds to finance cam-
paign speech”—that is, speech “on behalf of his own candi-
dacy.” Ante, at 10 (internal quotation marks omitted). By
contrast, laws focused on third-party contributions to a
campaign (a category the majority mostly prefers to ignore)
typically “entail[ ] only a marginal restriction” on First
Amendment interests. Buckley, 424 U. S., at 20. Take, for
example, a simple limit on the amount someone can donate
to a campaign, like the federal $2,900 ceiling. That kind of
restriction, we have reasoned, in no way interferes with the
donor’s “freedom to discuss candidates and issues” through
independent spending. Id., at 21. And it has only an indi-
rect effect on the campaign itself. To be sure, the cap makes
raising money (for speech and other things) harder: It forces
candidates “to raise funds from a greater number” of people
and generally results in the campaign taking in less money
4 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
than it otherwise would. Id., at 22. But the Court has
viewed such limits as troublesome only if they are so low as
to prevent candidates from raising “the resources necessary
for effective advocacy.” Randall v. Sorrell, 548 U. S. 230,
247 (2006) (plurality opinion) (quoting Buckley, 424 U. S.,
at 21). In the usual case, the incidental effect of a contribu-
tion restriction on a campaign’s speech does not count as a
significant First Amendment burden. See Randall, 548
U. S., at 246–247.
Under that precedent, Section 304 “entails only a mar-
ginal restriction” on speech, because it regulates contribu-
tions alone. Buckley, 424 U. S., at 20. The provision leaves
a campaign free to spend any amount of money for speech.
Likewise, it leaves the candidate himself—here, Senator
Ted Cruz—free to do so. The candidate can (in the major-
ity’s words) “use personal funds to finance campaign
speech” without limit; if he wishes, he can devote his whole
fortune to “speech on behalf of his own candidacy.” Ante, at
10–11. Section 304 restricts only the use of third-party con-
tributions to support his efforts—which, as just shown, im-
poses a far more modest First Amendment burden. Recall
how Section 304 works: It prevents post-election campaign
contributions from going to repay large loans that the can-
didate has made to his campaign. So the provision limits—
much as standard contribution caps do—only the candi-
date’s ability to shift the costs of his electoral speech to oth-
ers. Or said a bit differently, it addresses not a candidate’s
“self-fund[ing],” ante, at 12, but only his reliance on third-
party financing.
And even that regulation of third-party contributions is a
narrow one. Under Section 304, a campaign can always ac-
cept donations for small loans a candidate makes. And it
can use pre-election donations to retire even his sizable
loans. The statute just insists that donations for that pur-
pose occur when speech is ongoing, and before everyone
Cite as: 596 U. S. ____ (2022) 5
KAGAN, J., dissenting
knows which candidate won (and so is in a position to re-
turn the favor by delivering government benefits). Con-
sistent with our caselaw, that minor restriction on a candi-
date’s use of other people’s money does not severely burden
his (or anyone else’s) expression.
The majority’s argument to the contrary focuses not on
the restriction Section 304 actually imposes, but on the in-
direct effects the provision might have. The majority does
not dispute that Section 304 places no limits on the amount
a candidate can spend for expression. See ante, at 11. Nor
does (or could) the majority even claim that the provision
caps what a candidate can lend his campaign. Instead, the
majority argues that the law “may deter” a candidate from
making large loans because it curtails a potential source of
repayment—i.e., post-election donations. Ante, at 12. In
that way, the majority insists, the law—though concededly
regulating only the use of contributions—functions to “re-
strict[ ] a candidate’s speech.” Ante, at 11; see ante, at 13.
But every contribution regulation has some kind of indi-
rect effect on electoral speech, and we have still understood
them to impose only minimal burdens. Consider again a
standard contribution ceiling, like the federal $2,900 cap.
That limit, as we have acknowledged, makes raising money
harder. See Randall, 548 U. S., at 247; Buckley, 424 U. S.,
at 20–21. And so it predictably gives a campaign less
money to spend. (In fact, a lot less: Just think of a world in
which a candidate could raise an unlimited sum from every
supporter.) With the contribution cap in effect, the cam-
paign cannot pay for (nearly) as many advertisements,
mailings, signs, and so forth. And likewise, to return to the
fact pattern here, the campaign has less money available
than it otherwise would to repay a candidate’s (or any
other) loans. By the majority’s logic, that downstream ef-
fect would mean the contribution cap imposes a significant
First Amendment burden. But as noted above, we have al-
ways held to the contrary, save for the rare case in which
6 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
the limit is so low as to preclude effective advocacy. See
supra, at 3–4. There is no reason to treat Section 304 dif-
ferently. In fact, its restriction on post-election contribu-
tions for loan repayment probably has much smaller indi-
rect effects on a campaign’s or candidate’s speech than the
contribution ceilings this Court has approved. (Again, just
think of all the multi-million-dollar donations those ceilings
prevent.) So the majority’s view cannot be right.
And more fundamentally, the majority fails to appreciate
what Section 304 has an indirect effect on: lending, rather
than spending, money. In the majority’s view, those two
activities count as one and the same. See ante, at 10–11.
But they are not, in an obvious way. The expenditure of
“personal funds” for speech, this Court has observed, “re-
duces the candidate’s dependence” on donors—precisely be-
cause he is not trying to speak on their dime. Buckley, 424
U. S., at 53. The loan of personal funds has the opposite
effect, as further shown in this opinion’s next part. When a
candidate lends substantial funds to his campaign, he
wants (maybe desperately needs) them returned; he thus
risks—indeed, invites—dependence on donors, who alone
can make him financially whole. Section 304 responds to
that difference in whether a candidate is speaking inde-
pendently, or instead relying on others’ largesse. The pro-
vision at most deters a single mechanism for financing elec-
toral activities, because it carries a heightened threat of
corruption.
II
Preventing quid pro quo corruption or its appearance is a
compelling interest by any measure. See Federal Election
Comm’n v. National Conservative Political Action Comm.,
470 U. S. 480, 496–497 (1985). Quid pro quo corruption—
which extends beyond criminal bribery to “less blatant and
specific” arrangements—“subver[ts] the political process”
and threatens “the integrity of our system of representative
Cite as: 596 U. S. ____ (2022) 7
KAGAN, J., dissenting
democracy.” Nixon v. Shrink Missouri Government PAC,
528 U. S. 377, 388–389 (2000) (internal quotation marks
omitted). And the appearance of that corruption (though
scarcely mentioned in the majority opinion) is “[o]f almost
equal concern.” Id., at 388. Avoiding that appearance is
“critical” if public “confidence in the system of representa-
tive Government is not to be eroded to a disastrous extent.”
Id., at 389.
Serious dangers of actual and apparent quid pro quo cor-
ruption attend the transactions Section 304 regulates—
again, the use of post-election contributions to repay a can-
didate’s personal loans. Consider a simple comparison.
When a campaign uses a donation to fund routine electoral
activities (including speech), the money marginally aids the
candidate’s electoral odds, but in no way adds to his per-
sonal wealth. By contrast, when a campaign uses a dona-
tion to repay the candidate’s loan, every dollar given goes
straight into the candidate’s pocket. With each such contri-
bution, his assets increase; he can now buy a car or make
tuition payments or join a country club—all with his donors’
dollars. So contributions going to loan repayment have ex-
ceptional value to the candidate—which his donors of
course realize. And when the contributions occur after the
election, their corrupting potential further increases. At
that time, a campaign can use donations only to repay
loans, of which some 97% come from candidates. See 11
CFR 110.1(b)(3)(i) (2017); A. Ovtchinnikov & P. Valta, Self-
Funding of Political Campaigns, Management Science, Ar-
ticles in Advance 5 (Apr. 7, 2022) (Ovtchinnikov, Self-Fund-
ing). 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 dona-
tion to enhance the candidate’s own wealth (the quid), made
8 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
when he has become able to use the power of public office to
the donor’s advantage (the quo). The heightened threat of
corruption—and, even more, of its appearance—is self-evi-
dent (except, it seems, to observers allergic to all campaign
finance regulation).
In addressing that special danger, Section 304 is any-
thing but a “prophylaxis-upon-prophylaxis,” as the majority
labels it. Ante, at 14. The idea behind that fancy-sounding
epithet is just that the statute is a needless precaution: The
$2,900 contribution ceiling, the majority asserts, already
provides generous protection against the corrupting poten-
tial of donations, so the loan-repayment provision is unnec-
essary. See ibid. But that claim ignores that Section 304
targets only a subset of contributions, which raise (as just
described) unique corruption risks. When an added protec-
tion addresses an added danger, the existence of a basic pro-
tection (however ordinarily ample) fails to show the supple-
ment’s pointlessness. Regular seatbelts might suffice to
protect drivers on the interstate, but special belts—and roll
cages to boot—are essential measures on the racetrack. So
too, a $2,900 cap might suffice to prevent corruption from
normal campaign contributions—but not from post-election
contributions to repay a candidate’s loan, and thus to enrich
him personally. When Congress, as here, responds to a
heightened threat with a heightened safeguard, the major-
ity has no call to “greet” it “with a measure of skepticism.”
Ibid.Nor does the majority have reason to second-guess Con-
gress’s experience-based judgment about the specially cor-
rupting effects of post-election donations to repay candidate
loans. The majority’s first attempt to counter that judg-
ment is that “we are only talking about repayment of a
loan”: “If the candidate did not have the money to buy a car
before he made a loan to his campaign, repayment of the
loan would not change that in any way.” Ante, at 19. But
that altogether misses the point. However much money the
Cite as: 596 U. S. ____ (2022) 9
KAGAN, J., dissenting
candidate had before he makes a loan to his campaign, he
has less after it: The amount of the loan is the size of the
hole in his bank account. So whatever he could buy with,
say, $250,000—surely a car, but that’s beside the point—he
cannot buy any longer. Until, that is, donors pay him back.
Then, the hole is filled, the bank account replenished, and
the purchasing power restored. That is a significant finan-
cial gain to the officeholder, courtesy of donors. If they had
not stepped up, the officeholder would have been $250,000
poorer.
The majority’s second theory fares no better. Contribu-
tions to repay loans, the majority argues, do not really en-
rich an officeholder, because he has, from the beginning,
“expect[ed] to be repaid.” Ante, at 20. But the record pro-
vides no support for that self-assured statement. Contra
the majority, the Government “has recognized throughout
this litigation” not that winning candidates are usually re-
paid, but only that they are repaid more often than losing
ones. Ibid.; see App. 31–32, 317.1 That is no surprise—and
the fact is affirmatively unhelpful for the majority’s posi-
tion, because it shows how post-election donations reflect
an expectation of payback from the recipient. Nothing else
in the record (or outside it) is helpful to the majority either.
The best empirical study suggests that a substantial por-
tion of winning campaigns fail to retire candidate loans,
——————
1 The statement the majority quotes from a former FEC Commissioner
does not support any broader understanding of the Government’s claim.
That statement appears in a parenthetical to a citation for the Govern-
ment’s actual argument: that winning candidates “possess a greater ca-
pacity” than losing ones do to get their loans repaid. App. 31. And the
statement—that “only winners” have “an easy time dealing with debt”—
means not that all or most winners do, but instead that no losers do. Id.,at 31–32. The former Commissioner who made the remark had also
served as counsel to a losing presidential campaign, and he was merely
observing how hard that campaign had found it to repay debt. See P.
Overby, How Will Clinton Resolve Campaign Debt? National Public Ra-
dio, May 14, 2008.
10 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
even when their amounts are too small to trigger Section
304’s restrictions. See Ovtchinnikov, Self-Funding 11; see
also Brief for Campaign Legal Center et al. as Amici Curiae
12–13 (summarizing research “show[ing] that most cam-
paigns fail to pay off candidates’ personal loans in any
amount at any time,” in confirmation of the “[c]onventional
wisdom” that post-election fundraising is “notoriously diffi-
cult”). So a candidate with a loan outstanding has plenty of
reason to feel anxious—and to see the loan’s repayment as
a gratitude-inducing personal benefit. The donor takes him
off a sharp hook. And even a candidate who expects repay-
ment is far from impervious to corruption. He may have
that confidence exactly because he knows that a raft of lob-
byists will be eager to pay for political benefits. And with
his bank account depleted, he has a great temptation to per-
form his part in such an exchange.2
The common sense of Section 304—the obviousness of the
theory behind it—lessens the need for the Government to
identify past cases of quid pro quo corruption involving can-
didate loan repayments. As this Court has made clear,
“[t]he quantum of empirical evidence needed” to sustain a
campaign finance law “var[ies] up or down with the novelty
and plausibility of the [law’s] justification.” McConnell v.
Federal Election Comm’n, 540 U. S. 93, 144 (2003). There
——————
2 The majority also fails to recognize that post-election contributions can
go toward interest payments, enabling a candidate to turn a tidy profit
on top of recovering the amount loaned. Consider the case of one member
of the U. S. House Transportation and Infrastructure Committee. She
loaned her campaign $150,000 at an 18% interest rate (no, that is not a
typo), and over time collected more than $200,000 in interest payments.
Much of that money came from fundraising events hosted by a lobbying
firm representing members of the transportation industry. See A. Zajac,
Interest on Campaign Loan Pays, L. A. Times, Feb. 14, 2009, p. B1. The
example is extreme, but the FEC typically allows candidates to charge
their campaigns—which then tap contributors for—a commercially rea-
sonable rate of interest. See FEC, Campaign Guide for Congressional
Candidates and Committees 101 (2021).
Cite as: 596 U. S. ____ (2022) 11
KAGAN, J., dissenting
is nothing novel or implausible about Section 304’s ra-
tionale—once again, that payments going to line an elected
official’s pockets pose an especial risk of corruption. It is in
fact what everyone knows to be true—because everyone
knows people (including politicians) will often do things for
money. The majority suggests that we should discard our
understanding of how the world works because the Govern-
ment has not come forward with adjudicated instances of
corruption in the loan-repayment context. See ante, at 15–
16. But quid pro quo exchanges, in that and every other
setting, are nigh-impossible to detect and prove. That is
indeed why we have campaign finance laws like Section
304. They prohibit conduct posing a heightened risk of cor-
ruption, so that the Government does not have to ferret out
illicit exchanges case by case by case. To strike down Sec-
tion 304 because the Government has not proved to a cer-
tainty some number of loan-repayments-for-political-pay-
backs is to miss the provision’s essential point.
In any event, the Government and its amici have mar-
shalled significant evidence showing that the loan repay-
ments Section 304 targets have exactly the dangers Con-
gress thought. See Brief for Appellant 37–40; Brief for
Campaign Legal Center et al. 27–29. Here is a sampling
from the record, involving jurisdictions unprotected by ei-
ther Section 304 or a state equivalent. In Ohio, various law
firms donated almost $200,000 to help the newly elected at-
torney general recoup his personal loans. Those donors
later received more than 200 state contracts worth nearly
$10 million in legal fees. See L. Bischoff, Donations Help-
ing DeWine Pay Down Campaign Loan, Springfield News-
Sun, Feb. 2, 2012, p. A1. In Alaska, a lobbyist collected al-
most $100,000 for post-election repayment of the Gover-
nor’s personal loans. A business in which he held an inter-
est later received a $9 million state contract. See B. Curry,
Alaska Gov. Sheffield’s Impeachment Inquiry Has Over-
tones of Watergate Scandal, L. A. Times, July 19, 1985, p.
12 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
11. In Kentucky, two Governors loaned their campaigns
millions of dollars, “only to be repaid after the election by
contributors seeking no-bid contracts.” J. Moore, Campaign
Finance Reform in Kentucky: The Race for Governor, 85 Ky.
L. J. 723, 746 (1997). The scandal those transactions cre-
ated led to a new state campaign-finance law similar to Sec-
tion 304. In upholding that statute, a court more cognizant
than this one about how corruption works explained that
“heavily indebted candidates” were “easy bedfellows for
quid pro quo contributors.” Wilkinson v. Jones, 876
F. Supp. 916, 930 (WD Ky. 1995). That is also true on the
local level. In San Diego, to take just one instance, three
city council members cast critical votes benefiting lobbyists
who had raised funds to retire their campaign debts. See
C. Gustafson, Lobbyists See Benefit From Three City Offi-
cials, San Diego Union-Tribune, June 13, 2009, p. A1.3
An empirical study in the record confirms the dangers of
corruption shown in those examples. The study first found,
based on data preceding Section 304’s enactment, that pol-
iticians carrying campaign debt were “significantly more
likely” than their “debt-free counterparts” to “switch their
votes” after receiving contributions from special interests.
A. Ovtchinnikov & P. Valta, Debt in Political Campaigns
(2020), in No. 1:19–cv–00908 (D DC, July 14, 2020), ECF
——————
3 The majority asserts without explanation that these and other similar
examples involve not quid pro quo corruption, but only contributors’ ex-
ercise of their “greater influence” over candidates. Ante, at 16. Even
accepting that distinction (as our caselaw does), the majority’s claim is
hard to understand. Here is the quid in the examples: a donation paying
off a successful candidate’s personal loan. And here is the quo: a govern-
ment contract, or a key vote. However “vague” the “line between quid
pro quo corruption and general influence,” ibid., those exchanges cross
it. The majority must mean that the Government has not proved beyond
a doubt that the trades in fact occurred. But again, that is the wrong
standard given (1) the difficulty of such proof and (2) the significant risks
of quid pro quo corruption inherent in the above fact patterns. See supra,
at 10–11.
Cite as: 596 U. S. ____ (2022) 13
KAGAN, J., dissenting
Doc. 65–1, p. 31. In other words, officeholders did more in
exchange for donations repaying their personal loans than
for other donations. The analysis next looked at Section
304’s effect. Here, the data showed that politicians with
debt exceeding the law’s $250,000 threshold became “signif-
icantly less responsive” to contributions than before: They
began to “behave remarkably similar to their debt free
counterparts.” Id., at 28; see Ovtchinnikov, Self-Funding 3
(similarly stating that those politicians became more “inde-
pendent of contributions from special interest[s]”). In other
words, Section 304 did just what Congress thought it would.
By preventing post-election contributions from personally
enriching politicians, the provision diminished donor-re-
sponsive voting. The majority tries to undermine those
findings by quoting the kind of careful caveats always ac-
companying good social science. See ante, at 17; Ovtchinni-
kov, Self-Funding 21 (noting that the study is a “first step
in understanding” and that more work is needed to “fully
pin down” all aspects of causation). But the authors are
confident—and rightly so—in the findings just described:
that Section 304 markedly decreased the frequency with
which officeholders voted as donors would like. And alt-
hough the authors could not responsibly claim that all the
shifted votes they tallied were part of quid pro quo deals—
they are, after all, professors, not the FBI—they deduce
from the data that politicians carrying campaign debt were
“less likely to [be] sell[ing] access” than to be “sell[ing]
votes.” Id., at 18.
Finally, the record evidence addresses the “almost
equal[ly]” important matter of the appearance of corrup-
tion. Shrink Missouri, 528 U. S., at 390; see supra, at 6–7.
A Government-commissioned survey of public opinion
found that 81% of respondents believed it “very likely” or
“likely” that a person who “donate[s] money to a candidate’s
campaign after the election expect[s] a political favor in re-
14 FEDERAL ELECTION COMM’N v. TED CRUZ FOR SENATE
KAGAN, J., dissenting
turn.” App. 351–353. That bears repeating: 81%—an over-
whelming perception across all demographic categories, as
well as across all party affiliations and political ideologies.
See ibid. As the court reviewing the Kentucky version of
Section 304 explained: “[T]here is an impression” when a
contribution repays a loan after an election that the con-
tributor is simply “lining the candidate’s pocket, as there is
no ongoing campaign to which the contribution may be
made.” Wilkinson, 876 F. Supp., at 930; see supra, at 12.
The majority flyspecks the polling questions: Why didn’t
the poll define “political favor”? Did the poll mention that
the contributions had to comply with the $2,900 cap? And
so forth. See ante, at 17–18. But really—is it likely that
such tinkering would have made a real difference? The poll
results were so lopsided because the post-election contribu-
tions Section 304 targets—ones adding to the candidate’s
personal wealth—have so conspicuous a potential to cor-
rupt. The public knows that to be true. The public’s repre-
sentatives in Congress knew it to be true. Only this Court—
somehow—does not.
* * *
“Democracy works only if the people have faith in those
who govern.” Shrink Missouri, 528 U. S., at 390 (internal
quotation marks omitted). And the people cannot have
faith in representatives who trade official acts for financial
gain. Section 304 prevents that kind of corruption, at
barely discernable cost to First Amendment freedoms. The
provision limits one narrow use of third-party contributions
to a campaign, thus “entail[ing] only a marginal restriction”
on speech. Buckley, 424 U. S., at 20. And the provision tar-
gets a practice posing exceptional risks of quid pro quo
deals. Repaying a candidate’s loan after he has won elec-
tion cannot serve the usual purposes of a contribution: The
money comes too late to aid in any of his campaign activi-
ties. All the money does is enrich the candidate personally
Cite as: 596 U. S. ____ (2022) 15
KAGAN, J., dissenting
at a time when he can return the favor—by a vote, a con-
tract, an appointment. It takes no political genius to see
the heightened risk of corruption—the danger of “I’ll make
you richer and you’ll make me richer” arrangements be-
tween donors and officeholders. Section 304 has guarded
against that threat for two decades, but no longer. In dis-
carding the statute, the Court fuels non-public-serving,
self-interested governance. It injures the integrity, both ac-
tual and apparent, of the political process. I respectfully
dissent.