For almost half a century, the Supreme Court has helped further guarantee that money drives politics. A candidate’s wealth and fundraising prowess help determine who runs and who wins. Successful candidates who become officeholders must then either hop on an endless fundraising treadmill to win re-election, self-fund their campaigns or both. In a decision released Monday, the court kept going its trend of favoring moneyed interests, allowing candidates who want to lend themselves large sums of money and repay those loans with funds raised after the election.
In the zero-sum game of politics, this is a loss for the public.
In the zero-sum game of politics, this is a loss for the public. The six-member conservative majority of the court ruled in favor of Sen. Ted Cruz, R-Texas, and struck down a portion of our election laws that deals with how much candidates can loan their campaigns and still be repaid for those loans.
In 2018, Ted Cruz loaned his campaign $260,000 with the specific purpose of challenging a law that limited how and when he could pay himself back for that loan. The law said candidates could use $250,000 in campaign funds raised after the election to repay themselves.
Cruz’s campaign repaid his personal loans totaling $250,000. Under the federal law that the Supreme Court just made defunct, the remaining $10,000 that Cruz loaned to his campaign would have to be counted as a campaign contribution. Cruz sued, claiming that his inability to use more than a quarter million dollars of campaign funds raised after the election violated his First Amendment rights. And the court agreed.
Our representatives do not represent us, at least in terms of wealth. More than half the members of Congress are millionaires, but fewer than 10 percent of Americans are. Neither is it the case that those who donate to lawmakers are a representative group of Americans. Fewer than 2 percent of Americans give $200 or more to federal campaigns. Wealthy people should absolutely run for office and wealthy people should absolutely be able to spend money to elect the candidates of their choosing, but not to the detriment of the rest of the public. It’s common sense to believe that candidates and officeholders will be more responsive to those donors who can help them get and keep their jobs.
It didn’t have to be this way. Money given and spent in politics should be subject to reasonable limits, but in 1976, in what may be one of the most disastrous decisions for our democracy, the Supreme Court ruled that money given and spent in politics is speech. This means that every time we try to limit campaign contributions or expenditures, we must evaluate those limits as if we were limiting speech itself.
Thanks to a series of erroneous rulings by the Supreme Court, our nation’s campaign finance system is a shadow of what it should be. Individuals, groups and even corporations can spend unlimited sums of money to elect or defeat candidates. Despite a complex network of laws and regulations, the two restrictions which still stand, for now, include transparency requirements and limits to candidate campaigns.
On Monday, the Supreme Court invalidated one of the safeguards left in our campaign finance system. In Cruz’s case, the court’s conservative majority worried about the First Amendment rights of the candidate who wants to loan his campaign more than $250,000 and make sure that his donors will cover the loan. The majority also said because the government could not point to any cases of “quid pro quo corruption” that the rule guarded against, there was no legally justifiable reason for the restriction. To put this in its most basic terms, there are special risks of corruption, or at least its appearance, when officeholders are raising funds after the election to repay themselves. But that was not enough for this court. This is yet another turn on the court’s steady march to completely unravel our nation’s campaign finance system. In politics, as in life, appearances matter. And even if the government can’t point to specific instances of quid pro quo corruption, which is essentially bribery, the public will rationally worry that it’s present. This is bad for all of us in a representative democracy, which fundamentally depends on our faith in the idea that public servants serve all of us, not just the millionaire class who can give them substantial sums of money after an election is over.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
