Before becoming a U.S. senator in 2013, Ted Cruz argued nine cases before the U.S. Supreme Court as Texas solicitor general and as a Supreme Court advocate for Morgan, Lewis & Bockius.
On Wednesday, Cruz will be on the high court’s docket again, but not as a practitioner. The justices will be hearing arguments in a case that bears his name: Federal Election Commission v. Ted Cruz for Senate.
Cruz will not be attending the argument because of the court’s strict Covid-19 limits that allow only two counsel to appear for each party. Veteran Supreme Court advocate Charles Cooper of the Cooper & Kirk firm in Washington will argue on Cruz’s behalf and his co-counsel, John Ohlendorf, will be “second chair.”
At issue is the latest in a series of Supreme Court cases seeking to weaken campaign-finance restrictions as First Amendment violations. Cruz is targeting a 20-year-old federal law that limits money that candidates can raise after an election to recoup money they loaned to their own campaigns before the election. Under the law, a maximum of $250,000 can be donated to repay candidates’ loans.
The reasoning behind the provision, according to the Federal Elections Commission’s brief, is that such post-election donations go directly to the candidate, rather than to the candidate’s campaign.
“Once the election is over, it is less likely that the donor is giving money to fund speech or to help the favored candidate win, and more likely that she is giving money because of an expectation of special favors or a fear of retaliation,” U.S. Solicitor General Elizabeth Prelogar wrote in the brief. “The use of post-election contributions to repay candidate loans poses a special danger of real and apparent quid pro quo corruption.”
A brief filed by the Constitutional Accountability Center puts it succinctly: “The provision simply puts a limit on the dollar amount of monetary gifts made after a campaign that can go directly into a candidate’s pocket and be used in his personal capacity.”
To challenge the law, Cruz purposely loaned $260,000 — not $250,000 — of his own money to his 2018 senatorial campaign. Early in the litigation, Cruz’s lawyers asserted that not being able to retrieve the extra $10,000 amounted to a financial injury.
The commission claims that Cruz’s injury was “self-inflicted” and therefore he does not have standing to complain. “Not so,” Cooper said in the Cruz brief. “Appellees have clearly been injured by the loan-repayment limit.”
Cooper’s brief asserts that the law limiting the post-election donations “forces a candidate to think twice” before making the loans in the first place, and thereby “violates the First Amendment. Its limit on the funds a committee may use to repay a loan made by the candidate to finance his own election effort imposes a special and significant burden on a candidate’s First Amendment right to spend his own money advocating his own election.”
In an amicus brief on behalf of Republican senators in support of Cruz, Scott Keller, partner at the Lehotsky Keller firm, wrote, “This limit places a significant restriction on one of the most important sources for campaign funding. [The provision] therefore unconstitutionally burdens the First Amendment rights of candidates, campaigns, and contributors.”
Keller, a former Texas solicitor general and onetime Cruz’s chief counsel on the Senate Judiciary Committee, added, “Electoral political speech is at the core of the First Amendment. … Artificial restriction on candidate loans hinders a campaign’s robust and free expression — both by limiting the volume of campaign speech as well as by influencing how and when campaigns speak right before elections.”