Breaking and Analysis: Dividing on Ideological Lines and Breaking Little New Ground in FEC v. Cruz, Supreme Court Strikes Down Another Part of McCain-Feingold law

The result and lineup in today’s Supreme Court decision in FEC v. Cruz is no surprise: all the conservatives on the Court signed onto Chief Justice Roberts’ opinion holding that a loan repayment provision of the McCain-Feingold law is unconstitutional; the three liberals joined in a dissent from Justice Kagan stating that the law is constitutional. As troubling as the opinion is for someone who believes reasonable limits on money in politics do not violate the First Amendment, I breathed a sign of relief in reading the opinion because it broke no new ground. I had expected the Court could have used the opinion to make a major change in how to consider these constitutional questions; the Court didn’t, perhaps because of the abortion case and everything else on the Court’s plate now in the rush to finish for the term.

In a nutshell, the Supreme Court held that the law which prevents repaying federal candidate loans over $250,000 with money raised after the election was unconstitutional. The majority held that “This limit on the use of post-election funds increases the risk that candidate loans over $250,000 will not be repaid in full, inhibiting candidates from making such loans in the first place.” This even though the law is aimed at post-election contributions, it impinges on potential expenditures by candidates, and therefore limits their self-expression—especially of challengers who might loan their campaigns money to jump-start their campaigns. The Court held this was a great burden on speech, and was not justified to prevent corruption. In a part of the opinion likely to be quoted, the Court wrote: “We have consistently rejected attempts to restrict campaign speech based on other legislative aims. For example, we have denied attempts to reduce the amount of money in politics, see McCutcheon, 572 U. S., at 191, to level electoral opportunities by equalizing candidate resources, see Bennett, 564 U. S., at 749–750, and to limit the general influence a contributor may have over an elected official, see Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359–360 (2010). However well intentioned such proposals may be, the First Amendment—as this Court has repeatedly emphasized—prohibits such attempts to tamper with the ‘right of citizens to choose who shall govern them.’

It did not matter that the dissent cited incident after incident of apparent slimy campaign dealings happening between those who are elected to office and those seeking favor who help pay off the winning candidate’s existing loans. Finally, despite polling evidence that showed that large majority of the public think that such slimy repayments raise the risk of corruption, the court held that evidence was too weak to support the campaign finance laws. The dissent disagreed on virtually all of these points.

But it is worth pointing out what the opinion did not do: it did not change the standard of review that applies to campaign finance contribution limits, which remains somewhat less strict than the review of expenditure limits; it did not expressly state a new standard for the type of evidence necessary to show corruption or the appearance of corruption; and it did not otherwise mess with the Buckley framework. Given how strongly anti-campaign finance regulation this conservative Court supermajority is, I’m surprised this opinion wasn’t much worse. I don’t expect this opinion will have much influence on the general trajectory of Court review over campaign finance regulations (which is already bad enough).

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