Sen. Ted Cruz is putting his money where his mouth is in a lawsuit challenging Federal Election Commission campaign finance rules in a Supreme Court hearing slated for next week.
Justices will consider the First Amendment lawsuit brought by the Texas senator’s campaign, which seeks to challenge a provision in the 2002 Bipartisan Campaign Reform Act. The rule imposes a $250,000 limit on the number of donations collected after an election that campaigns can use to repay a candidate’s loans.
In 2018, Cruz loaned his Senate campaign $260,000 which is $10,000 more than the amount candidates can legally be repaid from post-election funds, according to the Justice Department. Cruz’s legal team argues the “burdens the core First Amendment rights of candidates, committees, and contributors” should be subject to scrutiny, according to court filings.
A three-judge panel concurred with Cruz in April 2019 that the law violated the First Amendment because it imposes an unnecessary burden of political expression.
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If the justices rule in favor of Cruz and strike down the loan payment permission of BCRA, the outcome would “essentially make sure the FEC isn’t finding a backdoor way to limit the dollar amount of campaign contributions that a candidate can use in his or her own bid for an elected office,” Zack Smith, a legal and judicial studies fellow at the Heritage Foundation, told the Washington Examiner on Wednesday.
The FEC has defended the measure established under BCRA as a means “against quid pro quo corruption or its appearance.”
DOJ Solicitor General Elizabeth Prelogar has also argued Cruz’s case has no standing because the “injury is self-inflicted, since [Cruz] and his campaign deliberately arranged their transactions so as to create a legal barrier to full repayment of the loan.”
Congress has long been permitted to enact campaign finance laws to block potential or perceived corruption, though the 2010 Supreme Court decision in Citizens United v. FEC narrowly defined the word “corruption” and even struck down restrictions on independent expenditures by corporations and labor unions close to elections.
Senate Minority Leader Mitch McConnell has also sided with Cruz’s case, saying, “The BCRA of today is a lopsided legislative regime that would not have passed Congress in 2002.”
The attorneys representing the Texas senator are John Ohlendorf and Chuck Cooper, the latter being a conservative lawyer who co-founded the firm Cooper & Kirk (formerly Cooper, Carvin & Rosenthal) where Cruz used to work.
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A spokesperson for Cruz told the Washington Examiner in September that “existing FEC rules benefit incumbent politicians and the super-wealthy by making it harder for challengers to run for office,” adding Cruz’s legal team is “confident” the Supreme Court would rule in favor of the plaintiff.
Justices are slated to hear arguments over the case on Wednesday.
