Money is the lifeblood of our often-poisonous political system. Our nation’s highest court has allowed an increasing amount of such blood to pump freely throughout our body politic. The Supreme Court is now considering when and how candidates can raise money after elections to give themselves infusions.
Money is the lifeblood of our often-poisonous political system.
Fewer than 0.2 percent of Americans donated more than $2,700 to candidates, political parties or political action committees during the 2020 election cycle. (Only 0.151 percent of women and 0.261 percent of men.) And yet, the court stands poised to expand that fraction of a percent’s power by allowing wealthy donors to further increase the influence they have over our elected officials.
Under federal law, candidates are limited in how much money they can raise after an election to repay personal loans they make to their campaigns. Specifically, candidates have 20 days after a campaign to use pre-election contributions to repay themselves. After that, they can raise up to $250,000 in post-election funds to pay themselves back.
Sen. Ted Cruz, R-Texas, set out to challenge the loan repayment limit in the Federal Election Campaign Act. The day before the 2018 midterm election, he loaned his campaign $260,000 and didn’t repay it within 20 days. Cruz’s campaign repaid him for $250,000 of his loan with post-election funds. He wants the remaining $10,000, which is over the legal limit.
Cruz claims that the limit violates his First Amendment rights without a sufficient reason. Why are we talking about First Amendment rights? Because as the Supreme Court has concluded for half a century, money given and spent in campaigns is speech, or at least speechlike. The government counters that the reason is to prevent corruption or the appearance of corruption that could arise when candidates raise money after the election to repay their personal loans to their campaigns.
Why do we have this limit? Because allowing candidates to raise money to pay themselves back after an election raises heightened corruption concerns. First, we are talking about money that is eventually going into candidates’ personal bank accounts. Second, we are talking about money they are raising not to win an upcoming election, but to settle up on the last election. Because those who donate in this circumstance are not trying to help a candidate (who is almost always the winning candidate, because to the winner goes the money) win election or re-election, the transactions give rise to the concern that they are merely trying to gain access to and influence over elected officials.
Allowing a candidate to raise money to pay herself back after an election raises heightened corruption concerns.
Our elected officials should serve all of their constituents, not just the wealthy ones. But politics is increasingly a game for moneyed interests, and in part we have the Supreme Court to thank for that. Wealthy donors’ attempts to obtain access and influence over elected officials is entirely legal. That is because the court has defined corruption and the appearance of corruption, the only interests sufficient to uphold campaign finance restrictions, very narrowly. In the campaign finance world, corruption means only quid pro quo, or this for that, corruption. If preventing corruption and its appearance are the only governmental interests that can justify campaign finance restrictions, and corruption is defined narrowly, few restrictions will withstand constitutional scrutiny.
This is largely why Cruz won his case in federal district court. The three-judge panel concluded that the government could not show why the limit is needed. The judges said the government had failed to identify “a single case of actual quid pro quo corruption in this context.” Of course, the inability to point to the worst type of corruption may actually show that the limit is working. But that point is unlikely to fit with the hostile view that the majority of the Supreme Court takes when it comes to campaign finance restrictions.
The first question the Supreme Court tackled was whether Cruz could even sue to challenge this law. The government has claimed that he does not have the standing to sue to challenge the federal loan repayment limit because his injury is one of his own making; he is out $10,000 only because he purposefully set out to challenge the federal law. The problem for the federal government is the weight of authority is against it on this point, and justices from both sides of the ideological spectrum appeared rightly dubious of this claim.
Most of the action in this case centers around the second issue in this case, whether, as Cruz argues, the loan repayment limit does, in fact, violate his speech rights. Again, the question is whether preventing corruption, narrowly defined as quid pro quo corruption, is enough to keep this limit on the books. The answer is that it certainly should be, but almost certainly won’t be left on the books by this court. On this point, Justice Elena Kagan, one of the best questioners on the court, if not the best, correctly pointed out that the limit is properly tailored to prevent corruption. Repaying a candidate’s indebtedness is another way of lining the candidate’s pockets, she correctly pointed out in oral arguments. Her point that a candidate with $3,000 of debt is less likely to think about selling his vote than a candidate with $500,000 in debt is exactly the anti-corruption interest the court should, but likely won’t, give credence to. Questions the conservatives on the court asked suggest they’re inclined to rule for Cruz. Chief Justice John Roberts questioned why candidates would not be corrupted for payments made up to $250,000 but would after $250,000. If we give credence to Roberts’ inquiry here, it would fundamentally call into question every time Congress attempts to balance interests and set a monetary limit on money in politics. Justice Amy Coney Barrett said the ability of candidates to repay themselves for loans they make to their campaigns does not, in fact, personally enrich a candidate “because he’s no better off than he was before. It is paying a loan, not lining his pockets.” Those questions are good signs that the court now stands ready to not just solidify previous decisions to essentially legalize bribery, but also to actually expand the types of transactions that fall within this legal category.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
