Imagine a successful small-business owner who wants to run for Congress. To jump-start his campaign, he might lend it some money. Once fundraising gets going, it can pay him back. But the law says donations arriving after Election Day may repay only $250,000 of candidate debt. If the businessman loans his campaign more than that amount, he’s taking a real financial risk.
That was true until Monday, when the Supreme Court ruled 6-3 in FEC v. Cruz that the repayment cap, passed as part of the McCain-Feingold mess of 2002, is unconstitutional. Sen. Ted Cruz advanced his 2018 campaign $260,000, leaving him $10,000 short after Election Day. As Chief Justice John Roberts writes for the Court’s majority, this restriction “inhibits candidates from loaning money to their campaigns in the first place, burdening core speech.”
It’s more than a theoretical worry: More than 90% of campaign debt is candidate loans, per the Federal Election Commission. Since 2002, Chief Justice Roberts says, “the percentage of loans by Senate candidates for exactly $250,000 has increased tenfold,” which suggests that people are trying to stay under the cap. Political competition is in the public interest, and the Chief adds that self-funding is “especially important for new candidates and challengers.”
Justice Elena Kagan, writing in dissent for the Court’s three liberals, defends the law’s merits. “Political contributions that will line a candidate’s own pockets, given after his election to office, pose a special danger of corruption,” she says. “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 return.” She also argues that the repayment limitation doesn’t affect Mr. Cruz’s ability to self-fund, only his opportunity to get money back from donors.
Yet Chief Justice Roberts replies that the government “is unable to identify a single case of quid pro quo corruption in this context.” Individual donations are “capped at $2,900 per election,” and meaningful sums are publicly reported. The Chief quotes incumbent Senators who originally debated the repayment limit, saying high-minded things such as: “I would like to be able to have a level playing field so I could stay in the ball game.”
Justice Kagan’s view of perceived corruption in politics is expansive. She cites a YouGov poll, commissioned by the government, in which 81% of Americans said they believed that post-election donors would likely expect political favors in return. OK, but would the public feel the same way about regular pre-election donors? The survey didn’t ask.
The Chief’s opinion is a logical extension of the Court’s many precedents on free speech and campaign finance. But the Court’s liberals can’t seem to acknowledge this as a matter of stare decisis. It’s clear they’re willing to overturn those precedents as soon as they get the chance, which we hope for the sake of political free speech will be a long way off.
