The Supreme Court’s decision on Monday in Cruz v. Federal Election Commission legalizes a form of “political speech” that is virtually indistinguishable from bribery. By a 6–3 vote, the conservative majority struck down yet another provision of the McCain-Feingold campaign finance act—this time lopping off a modest restriction on candidates’ ability to collect donations after an election to repay personal loans to their own campaigns. The ruling will encourage lawmakers to do political favors for donors who put money straight into their bank accounts. It is difficult to avoid the conclusion that—as Justice Elena Kagan put it in her furious and mournful dissent—Monday’s decision will “bring this country’s political system into further disrepute.”
Cruz v. FEC was manufactured by none other than Republican Sen. Ted Cruz, an avowed foe of campaign finance restrictions (who helped put half of the justices in the majority on the bench). In his 2012 race, the senator loaned his campaign more than a million dollars, but due to McCain-Feingold, he never recouped $545,000 of his loan. One section of the law prohibits candidates from paying off more than $250,000 in personal campaign loans with money raised after the election. (Candidates remain free to loan an unlimited sum to their campaigns, and can pay off those loans with donations up to 20 days after the election.)
In enacting this limit, Congress reasoned that postelection contributions are uniquely susceptible to corruption, for two related reasons. First, this money doesn’t go toward political speech on the campaign trail, but merely lines candidates’ own pockets. Second, when donors know their candidate has already prevailed, it’s even easier to furnish cash in exchange for favors: There’s no doubt that the recipient will be in a position to reward benefactors.
To take down this law and recover his $545,000, Cruz lent his campaign $260,000 just one day before the 2018 election. The senator could lawfully raise $250,000 to pay off that debt, but McCain-Feingold prevented him from collecting the final $10,000. Having engineered the perfect test case, Cruz then sued, alleging a violation of his First Amendment rights. (He apparently decided that this elaborate plot was easier than passing a law that would accomplish the same goal.)
The Supreme Court rewarded Cruz’s scheme on Monday in a decision by Chief Justice John Roberts that is either woefully naïve or wildly disingenuous. Roberts wrote that the law fails even lenient constitutional scrutiny because it “burdens core political speech without proper justification.” It is not obvious why, since the restraint applies only to postelection donations, when the campaign is over. So those contributions do not actually fund any “electoral speech.” But Roberts reasoned that the law nonetheless creates a “drag” on candidates’ First Amendment rights, because it dissuades them from loaning their campaigns money in the heat of the race. And since the government has no “legitimate objective” to impose this “drag,” it violates the Constitution.
Pause for a moment to consider just how extraordinary Roberts’ claim is. Congress has no legitimate objective in preventing donors from putting cash straight into a candidate’s bank account after an election? Really? It might seem like common sense that these contributions open the door to corruption. As Kagan noted in dissent, donors might contribute to victorious candidates in exchange for “government benefits—maybe favorable legislation, maybe prized appointments, maybe lucrative contracts.” While Kagan condemns these agreements as “sordid bargains,” however, Roberts deems them nothing more than “influence and access.” And the court has already held that Congress cannot limit contributions to stop lawmakers from performing favors for those who bankrolled their campaigns.
Still, Kagan argued, this particular restriction targets an uncommonly dangerous kind of “dirty dealing”: These donations do not even fund political speech, but instead “personally enrich those already elected to office.” This distinction matters. When a donation funds “electoral activities,” Kagan wrote, it “in no way adds to his personal wealth.” When a donation helps to repay the candidate’s loan, by contrast, “every dollar given goes straight into the candidate’s pocket. With each such contribution, his assets increase; he can now buy a car or make tuition payments or join a country club—all with his donors’ dollars.” These donations “have exceptional value to the candidate—which his donors of course realize. And when the contributions occur after the election, their corrupting potential further increases.”
Kagan and Roberts’ disagreement runs much deeper than the facts of this one case. It is, at bottom, a dispute about the government’s authority to safeguard democracy by outlawing the kind of self-dealing that makes lawmakers responsive to a small set of oligarchs rather than the people. Kagan sees a “heightened risk of corruption” in postelection donations, decrying “non-public-serving, self-interested governance” that the court relentlessly promotes. She provided multiple examples of these contributions facilitating corruption: In Ohio, the governor handed out more than 200 state contracts to his postelection donors. In San Diego, three city council members voted to benefit lobbyists who raised money to retire their campaign debts. In California, a congresswoman raised donations from lobbyists to pay off her personal campaign loans—at 18 percent interest. There’s nothing to stop politicians from using postelection contributions to pay off interest payments, allowing them to “turn a tidy profit,” in Kagan’s words.
The chief justice brushed off these and other examples in part by noting that the federal contribution limits still apply, capping individual donations to $2,900 for the primary and $2,900 for the general election. Of course, the logic of his ruling imperils these limits, given that they abridge far more political speech than the law at issue here. And through bundling, individual donors can still raise and contribute huge sums that blow past these caps. But setting that aside, the reality is that $2,900 remains a lot of money, and many officeholders have a seemingly bottomless bag of favors they can dole out to their supporters. To Kagan, these are “crooked exchanges.” To Roberts, they are proof of the system working as intended.
There is an undercurrent of disgust in Kagan’s opinion, an evident revulsion toward the majority’s endorsement of a captured democracy. Her previous dissents in campaign finance cases evince outrage over the damage inflicted by the court; in Cruz, she sounds not just angry but horrified and sickened by what her colleagues have wrought. Our political system, she suggests, is already in “disrepute,” and Monday’s decision will only “further” its collapse by granting First Amendment protections to bribery.
Roberts didn’t bother addressing this profound fear about the future of representative government. He was too busy devising a reason to make Ted Cruz $545,000 richer. To be fair, Democrats, too, will surely benefit from this decision, as will their own affluent patrons. “The only loser is the public,” as Kagan wrote, which stands to lose more “faith in those who govern.” That faith, the belief that government can and should respond to the will of the people, holds democracy together. It’s little wonder, then, that this court holds it in such contempt.
