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The conservative majority on the U.S. Supreme Court sided with Republican Senator Ted Cruz on Monday, ruling that a federal ban on foreigners repaying a candidate’s campaign loan after an election violates the constitutional guarantee of freedom of expression.
The vote was 6 to 3, with Chief Justice John Roberts writing the majority opinion.
Cruz challenged a 20-year-old federal law. It prohibits federal candidates from raising more than $250,000 after an election to repay loans the candidate has made to their own campaign.
Roberts’ majority opinion pointed to previous rulings that the First Amendment’s guarantee of free speech protects a candidate’s ability to use personal funds to finance his or her own campaign. These personal funds, Roberts said, include a bank loan secured by the candidate. Limiting the funds raised to repay such a personal loan after an election, Roberts said, would weigh down a candidate’s grassroots political discourse.
“A continuing pattern of extreme hostility”
Campaign reform advocate Fred Wertheimer, president of Democracy 21, reacted with dismay, saying “the money goes straight into the pocket of the office holder, so it’s not really a campaign contribution, it’s a financial gift”.
Monday’s ruling, he said, represents “a continuing pattern of extreme hostility from the Supreme Court since Chief Justice Roberts came to the court. They really tipped the system towards the very rich in this country.
But Roberts, addressing fears of influence peddling, said “influence and access embody a central feature of democracy – that voters support candidates who share their beliefs and interests, and elected candidates can be expected to respond to these concerns”.
Dissenting, Judge Elena Kagan, writing for the court’s three liberals, accused the majority of “green light[ing] all the sordid business” that Congress had tried to stop. Now, once again, she said, “the politician, once elected,” will be “deeply grateful” to the “wealthy people and lobbyists of the companies” that repay the loan, and they in turn will receive favorable legislation, perhaps prized appointments and perhaps lucrative contracts. The only loser, Kagan said, is the public”, who “inevitably suffer from the government corruption.
A debate on the facts
Kagan and Roberts argued over facts in the pages of their opinions, each sometimes citing information from the same studies and reaching different conclusions. Roberts said, in essence, that none of the studies could “prove” that there was a quid pro quo pattern of corruption in post-election loan repayment. Kagan responded that quid pro quo financial arrangements are “nearly impossible to detect and prove”. But she cited a sample of such cases that have been found in states that don’t make such funding deals illegal. In Ohio, for example, law firms donated $200,000 to help pay off the new attorney general’s personal loans, and those donors went on to receive more than 200 state contracts worth nearly $10 million in legal fees. In Kentucky, two governors loaned their campaigns millions of dollars, to be repaid after the election by contributors seeking no-bid contracts. The scandal created by these transactions led to a new campaign finance law similar to the one struck down today by the Supreme Court.
Monday’s case illustrates “the problem in this whole area of law,” said NYU law professor Richard Pildes. If you require proof of counterparty agreements, this is a very difficult standard to meet. After all, it almost takes a politician to admit that “‘Yes, I changed my vote because of loan repayment assistance.'” But evidence of a quid pro quo is precisely what the judicial majority conservative in recent years has found it necessary in campaign finance cases.
Although campaign finance reformers were disappointed by Monday’s High Court ruling, they were nonetheless relieved. The court didn’t do the one thing Senate Republican Leader Mitch McConnell asked it to do in a friend of the court brief. He called for the entire Bipartisan Campaign Reform Act, enacted in 2002, to be struck down, including campaign contribution limits. The court, at least for now, has not taken the bait.