Candidates for federal office may loan an unlimited amount of their own money to their campaign committees.1 However, under section 304 of the Bipartisan Campaign Reform Act of 20022 (BCRA), a candidate may not be repaid more than $250,000 of such loans from contributions made to the campaign after election day.3 Last Term, in FEC v. Ted Cruz for Senate,4 the Supreme Court held that section 304 violates the First Amendment by burdening core political speech without proper justification. In doing so, Cruz evinces the Court’s trend toward First Amendment absolutism and establishes a heightened standard of proof for restrictions on speech. In Cruz’s wake, laws once thought to be consistent with the First Amendment are at risk of being struck down.
During a campaign for federal office, a candidate may spend an unlimited amount of their own money,5 and the candidate’s campaign committee may borrow from third-party lenders or from the candidate themselves.6 Campaigns may also accept contributions directly from organizations and individuals7 — subject to monetary limitations8 — and may continue to receive contributions after election day.9 However, section 304 provides that a candidate who loans money to their campaign may not be repaid more than $250,000 of such loans from contributions made to the campaign after election day.10 To implement section 304, the Federal Election Commission (FEC) promulgated three regulations: First, a campaign may repay up to $250,000 in candidate loans using contributions made at any time.11 Second, for loans exceeding $250,000, a campaign may use pre-election funds to repay the portion exceeding $250,000 only if the repayment occurs within twenty days of the election.12 And, third, if more than $250,000 remains unpaid twenty days post-election, the campaign must treat the portion above $250,000 as a contribution to the campaign, precluding repayment.13
Cognizant of these regulations,14 Senator Ted Cruz loaned his Committee — Ted Cruz for Senate — $260,000 the day before the general election for his 2018 reelection.15 After the election, the Committee had $2.38 million in pre-election funds remaining.16 The Committee could have used those funds to repay Senator Cruz, but it chose not to do so within the twenty-day deadline.17 If the Committee had used pre-election funds to repay $10,000 to Senator Cruz within that twenty-day window, it could have used post-election funds to repay the remaining $250,000 at any time following the election.18 However, once the twenty-day deadline elapsed, $10,000 of the $260,000 loan was re-characterized as a contribution from Senator Cruz to his Committee, precluding repayment of such amount.19
In April 2019, Senator Cruz20 sued the FEC in federal court alleging that section 304’s loan repayment limit and its implementing regulations violate the First Amendment.21 He moved for his challenge to be heard by a three-judge district court, as provided for by section 403 of BCRA.22 Judge Mehta, sitting alone, rejected the FEC’s attempt to dismiss Senator Cruz’s claim for lack of standing and granted Senator Cruz’s application for a three-judge district court.23 Judge Rao, for a unanimous three-judge panel,24 then granted Senator Cruz’s motion for summary judgment.25 First, she concluded that the loan-repayment limit burdens the exercise of political speech by constraining the re-payment options available to candidates.26 Limiting the repayment options, in turn, could “inhibit” a candidate from lending money to their campaign.27 Then, she held that the FEC had not adequately justified this burden because the FEC’s position “amounts to speculation” that contributions to pay off a candidate’s personal loans carry a danger of quid pro quo corruption.28 Finally, she explained, even if the FEC had shown an important government interest, section 304 is “insufficiently tailored” to serve it.29 Having struck down section 304, the court dismissed Senator Cruz’s regulatory claims as moot.30 The FEC appealed to the Supreme Court.31
The Supreme Court affirmed.32 Writing for the majority, Chief Justice Roberts33 concluded that section 304 violates the First Amendment by burdening core political speech without proper jus-tification.34 Before turning to the constitutional issue, Chief Justice Roberts established that Senator Cruz had standing to challenge the threatened enforcement of section 304.35 Because Senator Cruz knowingly triggered the application of section 304, the FEC argued that his injury was traceable to himself,36 thereby extinguishing the traceability required for Article III standing.37 Chief Justice Roberts rejected this argument,38 reasoning that the fact that Senator Cruz chose to subject himself to section 304 did not negate that he was subject to it and would face legal penalties for failing to comply with it.39
Chief Justice Roberts then continued to the question whether section 304 violates the First Amendment.40 First, Chief Justice Roberts established that section 304 burdens core political speech.41 He reasoned that 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.42 The increased risk of default, in turn, inhibits candidates from loaning money to their campaigns.43 And this risk, he argued, is “an unprecedented penalty on any candidate who robustly exercises th[eir] First Amendment right.”44
Chief Justice Roberts then turned to whether the burden was justified. He explained that the only permissible ground for restricting political speech is “the prevention of ‘quid pro quo’ corruption or its appearance,”45 before finding that the FEC had not shown how section 304 furthered a permissible anticorruption goal, rather than “the impermissible objective of simply limiting the amount of money in politics.”46 This conclusion was premised on Chief Justice Roberts’s finding that the FEC did not identify tangible examples of quid pro quo corruption47 and had “merely hypothesize[d]” that the use of post-election contributions to repay a candidate’s debt would encourage corruption.48 Defending against the FEC’s arguments that section 304 targeted the appearance of corruption, Chief Justice Roberts remarked that “influence and access ‘embody a central feature of democracy’”49 and that although the “line between quid pro quo corruption and general influence may seem vague at times, . . . the distinction must be respected.”50
In conclusion, Chief Justice Roberts dismissed the argument that the Court should defer to congressional judgment that section 304 furthers an appropriate anticorruption goal.51 Such deference would be “especially inappropriate” here, he asserted, where the legislative act may have been an effort to insulate those legislators from effective electoral challenge.52
Justice Kagan dissented.53 First, she argued that the majority overlooked a key distinction between expenditure restrictions and contribution restrictions.54 Finding that section 304 limits “only the candidate’s ability to shift the costs of his electoral speech to others”55 and that “Section 304 places no limits on the amount a candidate can spend for expression,”56 Justice Kagan reasoned that section 304 should be evaluated under the same standard of review as other contribution restrictions: whether the contribution limit is “so low as to prevent candidates from raising ‘the resources necessary for effective advocacy.’”57 Against this standard, Justice Kagan suggested that section 304 should be upheld.58
Alternatively, Justice Kagan argued that even under the majority’s heightened standard of review, section 304 should be upheld. She suggested that the FEC “marshalled significant evidence” that section 304 targeted the prevention of quid pro quo corruption or its appearance59 and detailed several examples of such corruption from the record.60 She argued that the “quid” in these examples was “a donation paying off a successful candidate’s personal loan” and the “quo” was “a government contract, or a key vote.”61 The majority’s claim that the FEC was “unable to identify a single case of quid pro quo corruption,”62 Justice Kagan reasoned, indicated that Chief Justice Roberts improperly expected the FEC to “prove beyond a doubt that the trades in fact occurred.”63
Justice Kagan further argued that — absent explicit evidence of quid pro quo corruption — preventing the appearance of such corruption is sufficient justification for limiting political speech.64 She reasoned that the appearance of corruption is “self-evident” when a campaign uses a donation to repay the candidate’s loan because every dollar given goes straight into the candidate’s pocket.65 And, as a final argument, Justice Kagan pushed for congressional deference and judicial restraint, critiquing the majority for “second-guess[ing] Congress’s experience-based judgment about the specially corrupting effects of post-election donations to repay candidate loans.”66
Cruz follows the Court’s trend toward First Amendment absolutism,67 and, while it does not display an entirely novel approach, the case establishes a heightened standard of proof under which laws and regulations once thought to be consistent with the First Amendment are now at risk of being struck down.68
The Roberts Court — arguably the most speech-protective Court in history69 — “has extended near absolute protection to expression.”70 Through sweeping rhetoric,71 it has expanded the zone of protected speech to encompass even speech that is “overtly nonpolitical,”72 “hateful, offensive, illiberal, and dangerous”73: lies about military honors;74 the sale and rental of violent video games to minors;75 offensive speech targeted at the family of a deceased soldier on the day of his funeral;76 the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors;77 the commercial creation, sale, or possession of depictions of animal cruelty;78 and independent corporate expenditures for electioneering communications.79 And, while the Court has purported to balance the government justifications for particular restrictions on such speech,80 it has consistently held that “[t]he First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits”;81 that “[t]he First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs”;82 and that “political speech must prevail against laws that would suppress it, whether by design or inadvertence.”83 Under this paradigm, the Court — while professing that “[n]o right is absolute”84 and that freedom of expression must inevitably be weighed against other substantive considerations85 (like a desire to “prevent corruption or its appearance”86) — effectively preordains the First Amendment to prevail in all subsequent challenges.87
Cruz evinces this trend. By emphasizing that political spending is the essence of protected speech88 and that the First Amendment “prohibits . . . attempts to tamper with the ‘right of citizens to choose who shall govern them,’”89 the Court presented the First Amendment as a lofty, abstract principle.90 In contrast, while purportedly balancing these First Amendment rights against the government justifications for section 304, the Court framed such justifications in concrete detail — seemingly to trivialize them — and argued that section 304 is “yet another in a long line of ‘prophylaxis-upon-prophylaxis approach[es]’ to regulating campaign finance.”91 When so framed, the Court easily dismissed the government justifications as “pretty meager, given that we are considering restrictions on ‘the most fundamental First Amendment activities.’”92 So, while Chief Justice Roberts facially reached his holding through a technical analysis of the considerations proffered in support of section 304, the decision was actually driven by how these considerations are framed to emphasize the inviolability of the First Amendment.93
Moreover, Cruz introduced a heightened standard of proof, placing the burden squarely and onerously on the state, to uphold any restriction on expression.94 Chief Justice Roberts overlooked empirical evidence that post-election repayments of candidates’ loans lead to corrupt quid pro quo transactions, dismissing it, with little justification, as “scant.”95 But the empirical evidence provided by the FEC distinguished Cruz from precedents on which the majority relied — like Citizens United v. FEC96 and McCutcheon v. FEC97 — where no such evidence was actually marshalled.98 By rejecting this evidence, Cruz effectively established that in addition to presenting evidence of “‘quid pro quo’ corruption or its appearance,”99 the government must “prove beyond a doubt” that corruption in fact occurred.100 The creation of this new, heightened evidentiary requirement was hardly surprising given the sanctity with which Chief Justice Roberts regards the First Amendment, but it is significant: no longer is it sufficient to provide evidence of a valid justification for restricting speech; rather, it must be proven beyond a doubt.
Cruz illustrated two obvious defects of the Court’s absolutist approach. First, its faux modesty. The juxtaposition of a grand, abstract right and a slight, trivial consideration made the result of Cruz feel inevitable.101 However, the air of inevitability that produced Chief Justice Roberts’s absolutism did not eliminate the discretion and true balancing used to reach the holding — it merely concealed it.102 Being absolute about freedom of expression “does not mean that the [Court] has not made a judgment between competing considerations, but rather that [the Court’s] judgment absolutely goes one way.”103
And, second, Cruz illustrated how the Court’s growing absolutism enlists the First Amendment as a deregulatory tool that enfeebles functional government.104 The potential of the First Amendment as a deregulatory tool has been no secret to opportunistic litigants105 who have successfully formulated legal challenges to encompass First Amendment rights106: the requirement to bake a cake for a same-sex wedding,107 to pay union dues,108 to give women accurate information about available health services,109 or even to engage in partisan gerrymandering110 have been successfully construed as speech infringements. That the First Amendment is so “pressed into service for tasks on the periphery of its central purposes is a product of its success.”111 And the rewards of “squeezing” these claims under the First Amendment umbrella have been great.112 Post-Cruz, the prospects of success have only improved.113
Altogether, Cruz illustrated that the First Amendment is becoming an inviolable principle114 — “a classic trump” — that is absolute but for a few exceptional circumstances in which it may be limited.115 And it established a heightened standard of proof, placing the burden squarely and onerously on the state, to uphold any such limitation.116 The danger post-Cruz is not only that section 304 has been invalidated117 but also that the Court’s absolutist paradigm may be applied to construe justifications for other First Amendment restrictions as equally “meager” as those advanced for section 304.118 This paves the way for the Court to invalidate other laws and regulations, even those that are empirically substantiated.